Jeez, Louise! (Updated)

Update: The more I look into this, the more possible it seems that Louise Mensch's most-derided "scoop" may actually be true. Or mostly true. What Mensch's critics (and perhaps Mensch herself) fail to understand is that the impeachment process is surprisingly easy to start, and very difficult to fulfill. Nevertheless, it is indeed a provable fact that the impeachment of Donald Trump has been initiated. (The proof is below.) As for the rest: I'm making inquiries. Responses may come slowly, since today is Sunday. I'll let you know soon whether Mensch and Taylor had it right all along.

And now, here is the post as originally published...

A couple of posts down, I chided Louise Mensch for displaying a near-Trumpian inability to apologize for anything. The next day, she apologized for something -- specifically, for a story about Anthony Weiner. We may discuss that matter at another time.

Right now, she is being crucified by both the right and the left for this piece, written in conjunction with Claude Taylor.

Multiple sources close to the intelligence, justice and law enforcement communities say that the House Judiciary Committee is considering Articles of Impeachment against the President of the United States.

Sources further say that the Supreme Court notified Mr. Trump that the formal process of a case of impeachment against him was begun, before he departed the country on Air Force One. The notification was given, as part of the formal process of the matter, in order that Mr. Trump knew he was not able to use his powers of pardon against other suspects in Trump-Russia cases. Sources have confirmed that the Marshal of the Supreme Court spoke to Mr. Trump.

A couple of months ago, when Mensch was much more popular on the left, I contributed a piece to Democratic Underground warning liberals to be chary of her. In response, many angry DU-ers accused me of being a secret agent for Trump.

Now that so many on the left have turned against Mensch, my first instinct is to spring to her defense. Why? Well...heterosexuality, for one thing. (So I find her attractive. Shoot me.) Beyond that, I just like to be contrary. When they give you ruled paper, write the other way; when the villagers go after Frankenstein's monster, write a pro-monster editorial.

So let's see if there's any way to salvage this.

Many people have pointed out that the Supreme Court plays no constitutional role in the impeachment process. In response to a reader who voiced this complaint, Mensch angrily tweeted:

And we don't report that it does ANYWHERE IN THE STORY. We report a NOTIFICATION

Yeah but. Why would the Marshal of the Supreme Court be tasked with notifying Trump about impeachment? Has that happened before?

I've been reading the Congressional Research Service's manual on Impeachment and Removal. It discusses at some length the various precedents, and at no point does it ever refer to the Supreme Court notifying a target that the impeachment process has begun.

I've also been reading up on the impeachment of Bill Clinton and the impeachment process against Richard Nixon (which was aborted by his resignation). As near as I can tell, the Marshal of the Supreme Court never notified either man of...well, of anything.

So if the Marshal notified Trump, the act appears to have no precedent. I'm not saying that such a thing is impossible; I simply cannot find a precedent. Moreover, I doubt that informing the President of anything falls within the Marshal's job description.

Another problem: I don't understand how the initiation of impeachment would affect the president's ability to issue pardons.

The United States Constitution, Article II, section 2, says that the President "shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment." But in the aforementioned manual, the Congressional Research Service makes clear (on page 3) that this section "bars the President from using the pardon power to shield individuals from impeachment or removal from office."

The Constitution does not stop the President from pardoning potential witnesses or co-conspirators who may be facing criminal charges. Of course, pardoning a co-conspirator would simply remove that person's ability to plead the Fifth, so I don't see how that move would work in Trump's favor.

Perhaps Mensch is saying that the Judiciary Committee is considering impeachment against not just Trump but against a whole range of Trumpians? (Again, I'm trying to put the most charitable spin on this.) But even then, the Supreme Court would simply declare any pardons null and void when it comes to impeachment. I see no need to warn Trump "Don't do it."

Here's an interesting thought experiment: Could Trump pardon Michael Flynn?

One's first response would be "yes" because Flynn is no longer in government and therefore beyond impeachment. Article 2 would not apply to his case. However, contrary to popular belief, it is possible to impeach a former government official, even though the gesture is a bit like hanging someone who is already dead. In 1876, corrupt Secretary of War William Belknap was impeached after his resignation.

(By this logic, Gerry Ford should not have had the ability to pardon Nixon, since Nixon remained impeachable even after his resignation. I don't recall anyone making this argument at the time. Do you? It's probably the case that Gerry's pardon covered only criminal charges by the DOJ, and would not have prevented the House from impeaching Nixon.)

We're left with what may be the most important question of all: Just when does the impeachment process start? What do we mean by "initiation"?
To answer that poser, let's look at the Nixon case. Most people think that the process started on February 6, 1974 when

The United States House of Representatives passed a resolution, H.Res. 803, giving its Judiciary Committee authority to investigate whether sufficient grounds existed to impeach Richard Nixon, the 37th President of the United States[1] of high crimes and misdemeanors, primarily related to the Watergate scandal.

Actually, there had been a number of previous "starts" to the impeachment process -- and three of those starts occurred before the Watergate break-in, during his first term.

On May 9, 1972, Representative William Fitts Ryan (D-NY) submitted a resolution, H.Res. 975, to impeach President Nixon. The resolution was referred to the Judiciary Committee.[2] The next day, Representative John Conyers (D-MI) introduced a similar resolution, H.Res. 976.[3] On May 18, 1972, Conyers introduced his second resolution, H.Res. 989, calling for President Nixon's impeachment. The resolutions were referred to the Judiciary Committee, where they did not progress. These actions occurred before the break-in at the Watergate complex.

Representative Robert Drinan of Massachusetts on July 31, 1973 called to introduce a resolution calling for the impeachment of Nixon, though not for the Watergate scandal. Drinan believed that Nixon's secret bombing of Cambodia was illegal, and as such, constituted a "high crime and misdemeanor"

So: Which counts as the "initiation of impeachment" date -- May 9, 1972, or February 6, 1974? I would argue that both dates count. We have to think in terms of multiple impeachment efforts.

As near as I can tell, the Marshal of the Supreme Court never popped in to say "Hi!" to Tricky Dick.

In the present day, the question of "When does impeachment start?" is of enormous interest. One could argue that the impeachment of Donald Trump began three days ago.

Let's look at page 17 of the afore-cited Congressional Research Service document.

Initiation

Impeachment proceedings may be commenced in the House of Representatives by a Member declaring a charge of impeachment on his or her own initiative, by a Member presenting a memorial listing charges under oath, or by a Member depositing a resolution in the hopper, which is then referred to the appropriate committee. The impeachment process may be triggered by non-Members, such as when the Judicial Conference of the United States suggests that the House may wish to consider impeachment of a federal judge, where an independent counsel advises the House of any substantial and credible information which he or she believes might constitute grounds for impeachment, by message from the President, by a charge from a state or territorial legislature or grand jury, or by petition

If the Mensch/Taylor story is valid, then just which of these parties got the impeachment ball rolling?

You may not have heard about it, but Congressman Al Green of Texas formally asked for impeachment three days ago. According to the guidelines quoted above, Green "initiated" the process.

Is that what Mensch and Taylor are talking about? Did Green make a whole lot of history without anyone noticing? If so, then Mensch has been at least partially vindicated. She said that impeachment proceedings have been initiated, and such is indeed the case.

Is it also possible that a grand jury has initiated impeachment? There is indeed a grand jury which has issued subpoenas against Flynn. But I doubt that any grand jury could -- or would -- formally ask for the impeachment of Trump in secret. What would be the point of secrecy?

The most interesting idea is impeachment-by-petition. There are several petitions to impeach Trump, and they've acquired an enormous number of signatures, although I've seen no guidelines as to how many are required. See here and here and here. Can we say that the impeachment process was "initiated" the moment these petitions were presented to the Judiciary Committee? Were they, in fact, formally presented to the Judiciary Committee?

A final note:  Mensch's blog contains a "Contact and Whistleblowing" page.

We will be setting up a secure drop shortly. You can contact us securely on patribotics@protonmail.com, or leave us a message via this form.

I know that seasoned spies are always wary of "walk ins." Is Louise Mensch sufficiently wary of the people who use that form? Seems to me that James O'Keefe and his pranksters would love to discredit her.