Second, arbitrary discrimination. When someone claims they were acting for a particular reason, look to see if they treated similarly-situated individuals the same.[1]For example, if a President says that people doing business abroad should not engage in specific practices, does he punish everyone who breaks that rule, or does he pick and choose? If he picks and chooses, is there a good reason why he targets some people and not others, or does he appear to be targeting people for reasons unrelated to his stated motive? Where similarly-situated people are treated differently, the President should be able to explain why; if no such explanation exists, it follows that hidden motives are in play.
Third, shifting explanations. When someone repeatedly changes their story, it makes sense to infer that they began with a lie and may still be lying.[2]That is true in daily life and it is true in impeachments. The House may therefore doubt the President's account of his motives when he first denies that something occurred; then admits that it occurred but denies key facts; then admits those facts and tries to explain them away; and then changes his explanation as more evidence comes to light. Simply stated, the House is "not required to exhibit a naiveté from which ordinary citizens are free."[3]
Fourth, irregular decisionmaking. When someone breaks from the normal method of making decisions, and instead acts covertly or strangely, there is cause for suspicion. As the Supreme Court has reasoned, "[t]he specific sequence of events leading up the challenged decision" may "shed some light on the decisionmaker's purposes"—and "[d]epartures from the normal procedural sequence" might "afford evidence that improper purposes are playing a role."[4] There are many personnel and procedures in place to ensure sound decisionmaking in the Executive Branch. When they are ignored, or replaced by secretive irregular channels, the House must closely scrutinize Presidential conduct.
Finally, explanations based on falsehoods. Where someone explains why they acted a certain way, but the explanation depends on demonstrably false facts, then their explanation is suspect.[5] For example, if a President publicly states that he withheld funds from a foreign nation due to its failure to meet certain conditions, but the federal agencies responsible for monitoring those conditions certify that they were satisfied, the House may conclude that the President's explanation is only a distraction from the truth.
- ↑ Flowers v. Mississippi, 139 S. Ct. 2228, 2249 (2019); Miller-El v. Cockrell, 537 U.S. 322, 345 (2003).
- ↑ See Foster v. Chatman, 136 S. Ct. 1737, 1754 (2016); Evans v. Sebelius, 716 F.3d 617, 620–21 (D.C. Cir. 2013); Geleta v. Gray, 645 F.3d 408, 413–14 (D.C. Cir. 2011); EEOC v. Sears Roebuck & Co., 243 F.3d 846, 853 (4th Cir.2001); Domínguez–Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 432 (1st Cir. 2000); Thurman v. Yellow Freight Sys., Inc., 90 F.3d 1160, 1167 (6th Cir. 1996).
- ↑ United States v. Stanchich, 550 F.2d 1294, 1300 (2nd Cir. 1977) (Friendly, J.) (making a similar point about federal judges).
- ↑ See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977).
- ↑ See, e.g., Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 147 (2000); Geleta v. Gray, 645 F.3d 408, 414 (D.C. Cir. 2011); Czekalski v. Peters, 475 F.3d 360, 366 (D.C. Cir. 2007); Murray v. Gilmore, 406 F.3d 708, 716 (D.C. Cir. 2005); Salazar v. Wash. Metro. Transit Auth., 401 F.3d 504, 511–12 (D.C. Cir. 2005); Anderson v. Zubieta, 180 F.3d 329, 348 (D.C. Cir. 1999).
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