The Trump Impeachment Has Revealed Three “Deep Flaws” in the Constitutional System

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Michael Gerhardt, a constitutional law professor at the University of North Carolina, writes at The Atlantic:

…few think that the acquittal of President Trump is a triumph for the Constitution. Instead, it reveals a different, disturbing lesson, about how the American political system—and the Constitution itself—might be fundamentally flawed.

Since the writing of the Constitution, three developments have substantially altered the effectiveness of impeachment as a check on presidential misconduct.

They are:

  1. Extreme partisanship
  2. The internet and social media
  3. The direct election of Senators

See how he develops these points here.

Would the Founders Have Recognized GOP Arguments Against Trump’s Removal?

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As we enter the 2020 election season I have been trying to do more writing for local and regional outlets here in Pennsylvania. This morning I have an op-ed on the impeachment trial at LNP/Lancaster On-Line (formerly Intelligencer Journal-Lancaster New Era).  Here is a taste:

Other Republican senators, including Lamar Alexander of Tennessee, Susan Collins of Maine, Lisa Murkowski of Alaska, Ben Sasse of Nebraska, and Pennsylvania’s own Pat Toomey, argued that Trump’s phone call with the Ukrainian president was “inappropriate,” but did not rise to the level of impeachment.

This last group of senators justified their acquittal votes in two ways.

First, some of them argued that the Founding Fathers would have opposed a partisan impeachment. (No House Republicans supported impeachment.)

This is not true.

In Federalist Paper No. 65, Alexander Hamilton, one of the most prolific defenders of the Constitution during the ratification debates of 1787-1788, predicted that impeachments would always be political. As a result, the Senate should always proceed with caution, prudence and wisdom.

Moreover, the framers of the Constitution would never have referred to an impeachment trial as “bipartisan,” since at the time of its writing there were no political parties in the United States.

The second way that this cohort of Republican senators justified their acquittal vote was by claiming that “the people” should decide whether Trump should be removed from office and this should be done when they cast their ballots during the November presidential election.

The Founding Fathers would not have recognized such an argument.

Read the entire piece here.

Alan Dershowitz on the Academic Margins

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Alan Dershowitz‘s case against the removal of Donald Trump may have won over many GOP Senators during the president’s impeachment trial, but it has failed to convince law professors, legal scholars, and historians.  At one point during the trial, Dershowtiz ripped into his academic colleagues, suggesting that they are all “influenced by their own bias, by their own politics and their views.”  As I wrote last week, this plays into the belief, popularized by Fox News and other conservative media, that the opponents of Trump are liberal, ivory-tower elites who are out of touch with real people.  This is the kind of anti-elitism driving conservative activist Matt Schlapp’s recent tweet defending Donald Trump after the president thought the Kansas City Chiefs played football in Kansas.

Over at Inside Higher Ed, Colleen Flaherty has an informative piece on how Derhowitz’s views on impeachment are well outside the academic mainstream.  Here is a taste:

Does any of this challenge Dershowitz’s standing in academe? Is his expert analysis so left of field that he can no longer be deemed an expert, especially one affiliated with Harvard?

Bowman said Dershowitz has never really had such standing, and that he’s “never done any serious legal scholarship.” Instead, Bowman said he’s focused on op-eds and trying his own cases. (Perhaps most famously, Dershowitz defended O. J. Simpson.)

That Senate Republicans hail Dershowitz as an expert “just shows how desperate they are to find somebody, anybody, to tell them what they wanted to hear,” Bowman added.

Harvard had no comment on the matter of Dershowitz’s status, while Fried said that “even Harvard faculty members sometimes make arguments with absurd entailments.”

Dershowitz, of course, disagrees with his detractors. He says that he’s been intellectually alone often in his career, including in being against the death penalty in the 1960s and, more recently, for the limited use of what he’s called emergency “torture warrants.” He also said he wasn’t afraid to “impugn” his colleagues in asserting that they would not, in some alternative universe, support the same impeachment case against former Democratic presidential nominee Hillary Clinton.

“The burden of proof here is on those who ignore the plain language” of the Constitution on impeachment, which specifically mentions treason, bribery and high crimes and misdemeanors, he said.

“I think professors often allow, consciously or unconsciously, politics to seep into their constitutional analysis,” he added. “I’ve been proved right more often than not, and I think history will prove me correct here. The next time there’s a Democrat president and a Republican-controlled House, the president will be impeached and all the scholars criticizing me now will be making similar arguments.” (For the record, Dershowitz said during the trial that he voted for Hillary Clinton.)

Dershowitz is currently writing a book on impeachment.

Read the entire piece here.

What Happened in the Senate Yesterday?

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CNN has a nice overview. Here is a taste:

Republicans have variously argued that Trump did nothing wrong, the Democrats made up impeachment charges or that there was no quid pro quo in Ukraine. But they have apparently been pushed to this final, fallback position in the light of Bolton’s claim in a manuscript for his new book first reported by The New York Times that Trump did indeed tell him to withhold aid to Kiev until it opened probes into his domestic foes.

The legal reasoning from Dershowitz — while outside the mainstream — is giving Republican senators political cover to stand with the President.

The Harvard emeritus professor claimed on the Senate floor that if a politician thinks his reelection is in the national interest, any actions he takes towards that end cannot by definition be impeachable.

“And if a president did something that he believes will help him get elected, in the public interest, that cannot be the kind of quid pro quo that results in impeachment,” Dershowitz argued.

Lead House impeachment manager Adam Schiff however argued that such a position suggested an interpretation of the Constitution that held it acceptable for a President to abuse his power and Congress could do nothing about it.

“You can’t do anything about it because if he views it as in his personal interest, that’s just fine. He’s allowed to do it. None of the founders would have accepted that kind of reasoning,” Schiff said, adding later, “In fact, the idea that the core offense that the founders protected against, that core offense is abuse of power, is beyond the reach of Congress through impeachment would have terrified the founders.”

CNN legal expert Carrie Cordero said that Dershowitz’s arguments — that CNN reporters in the chamber said were warmly received by Republican senators — were nonsensical.

“It basically means that a President can do anything and they can make a subjective determination that their reelection is in the national interest,” Cordero said.

“It invites and opens the door to anything that is in the realm of foreign influence.”

Dershowitz reacted angrily later on in the question-and-answer session to suggestions by the House impeachment managers that he was in a slim minority of legal thought, claiming that constitutional experts who did not agree with him treated Republican and Democratic presidents by different legal standards.

“These scholars are influenced by their own bias, by their own politics and their views should be taken with that in mind. They simply do not give objective assessments of the constitutional history,” Dershowitz said.

The spectacle of Republicans adopting such arguments is remarkable since the party that once saw itself as the epitome of limited government is coalescing in an effort to broaden the unrestrainable power of the presidency. But it is also thematically compatible with the idea of a “unitary executive” — a theory that grants expansive powers to the presidency and is advanced by some conservative lawyers — including current Attorney General William Barr. In his own way, Trump has argued similar points, claiming that Article II of the Constitution gives him the power to do anything he wants.

Read the entire piece here.

I was struck by Dershowitz’s statement that all other Constitutional scholars are “influenced by their own bias, by their own politics and their views should be taken with that in mind.  They simply do not give objective assessments of constitutional history.”

Such a statement implies that Dershowitz is the only true, objective constitutional scholar in the world.   Everyone else is biased.  Only he is right.  This is like Trump saying “I alone can fix it.”

Dershowitz’s absurd argument is an appeal to the Trump base.  Dershowitz is telling Trump supporters that there is a deep state of elite liberal law professors who are out to get them and their president.  I have not had a chance to watch Fox News today, but I am imagine they are running with this argument.

“Mr. Dershowitz is an expert on civil liberties and criminal law and procedure, not constitutional law generally”

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Steven Harper is a lawyer, graduate of Harvard Law School, and an adjunct professor of law at Northwestern University.  While at Harvard he took a class with Alan Dershowitz, a member of Donald Trump’s impeachment defense team.  I think it is fair to say that Harper speaks for the overwhelming majority of legal scholars in the country.  Sure, Dershowitz might find someone who supports his defense of Trump, but this would be like a climate-change denier trying to find a legitimate climate scientist who says climate change is a hoax.

Here is a taste of Harper’s post on Dershowitz at The New York Times:

Two months before President Bill Clinton’s impeachment hearings began in 1998, Larry King asked Mr. Dershowitz whether he agrees that “some of the most grievous offenses against our constitutional form of government may not entail violations of the criminal law.”

“I do,” he answered. If those offenses “subvert the very essence of democracy.”

In the same interview, Mr. Dershowitz also said: “It certainly doesn’t have to be a crime if you have somebody who completely corrupts the office of president and who abuses trust and who poses great danger to our liberty. You don’t need a technical crime. We look at their acts of state. We look at how they conduct the foreign policy. We look at whether they try to subvert the Constitution.”

But on Sunday, Mr. Dershowitz was acting as one of Mr. Trump’s lawyers when he said to George Stephanopoulos that abusive or obstructive conduct is not impeachable and that an “actual crime” is required. And although the evidence demonstrates that Mr. Trump has committed crimes, Mr. Dershowitz asserted that, unless those crimes are explicitly stated in articles of impeachment, they cannot lead to Mr. Trump’s removal from office.

Mr. Dershowitz said that he was defending Mr. Trump to protect the Constitution, but serious constitutional scholars didn’t buy his argument. Another of my former professors, the constitutional law expert Laurence H. Tribe, responded with an op-ed essay in The Washington Post. “The argument that only criminal offenses are impeachable has died a thousand deaths in the writings of all the experts on the subject,” he wrote. “There is no evidence that the phrase ‘high crimes and misdemeanors’ was understood in the 1780s to mean indictable crimes.”

Mr. Tribe likewise debunked Mr. Dershowitz’s argument that the president could not be impeached for “abuse of power,” noting, “No serious constitutional scholar has ever agreed with it.” Among those scholars is the Republicans’ designated constitutional law expert, Jonathan Turley. He testified before the House Judiciary Committee that impeachment could result from conduct that was not technically a criminal act.

Mr. Dershowitz is an expert on civil liberties and criminal law and procedure, not constitutional law generally. Facing widespread criticism and trying to reconcile his 1998 statements with his new position, he now says that Congress doesn’t need a “technical crime” to impeach, but there must be “criminal-like” conduct, or conduct “akin to treason and bribery.” To the extent his earlier statement “suggested the opposite,” he retracts it.

Read the entire piece here.  I am not an expert on the legal profession, but it seems like this is the equivalent of picking a historian of China to provide expert testimony on Alexander Hamilton.  I am sure Jonathan Spence would be great in court, but if you had to pick a true expert wouldn’t you go with someone like Joanne Freeman or Ron Chernow?

What Did the Founding Fathers Say About Impeachment?

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House managers in the impeachment trial of President Donald Trump filed their brief to the Senate today.  The brief describes Trump’s behavior with Ukraine “the Framers’ worst nightmare.”

So what did the Framers of the United States Constitution say about impeachment?

Here is a nice summary from the United States Constitution Center:

One of the most hotly debated clauses in the Constitution deals with the removal of federal government officials through the impeachment process. But what did the Founders who crafted that language think about the process and its overall intention?

The need for the ultimate check, and in particular the removal of the President, in a system of checks and balances was brought up early at the 1787 convention in Philadelphia. Constitutional heavyweights such as James Madison, Benjamin Franklin, James Wilson and Gouverneur Morris debated the Impeachment Clause at the convention, and Alexander Hamilton argued for it in The Federalist after the convention.

Today, impeachment remains as a rarely used process to potentially remove the “President, Vice President and all civil Officers of the United States” if Congress finds them guilty of “Treason, Bribery, or other high Crimes and Misdemeanors.”

In all, 19 federal officials have been brought up on impeachment charges by the House of Representatives since 1789, with eight people convicted after a Senate trial. Two Presidents – Andrew Johnson and Bill Clinton – faced Senate trials but were not found guilty by a two-thirds majority of the Senate.

The threat of impeachment remains a power check, at least in theory, against the abuse of power, and it is sometimes discussed in times of political controversy, as well as in cases where there is a clear issue with personal conduct in office. Of the eight persons impeached and convicted in Congress, all were judges who faced charges including perjury, tax evasion, bribery, and in one case, supporting the Confederacy.

At the 1787 convention, delegate Edmund Randolph quickly brought up the subject as part of his Virginia Plan. William Patterson’s rival New Jersey Plan had its own impeachment clause. National Constitution Center scholar-in-residence Michael Gerhardt explained the differences in his book, “The Federal Impeachment Process: A Constitutional and Historical Analysis.”

Read the rest here.

“Promote the General Welfare”

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We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

Over at The Washington Post, historian J.M. Opal reflects on this often overlooked phrase in the preamble to the United States Constitution and suggests that its application might provide a way forward.

Here is a taste of his piece “How the Constitution can help reclaim government for all of us“:

The impeachment process calls our attention to the Founders’ fear of government gone wrong. As we start a new year, we remember all their warnings and safeguards against unscrupulous men in high places.

Perhaps their wisdom from 1787 will help us turn the page on Donald Trump in 2020. To fully recover from his abusive reign, however, we’ll also need to recall our pro-government traditions, starting with the pledge in the Constitution’s preamble to “promote the general Welfare.”

This clause has deep roots in European statecraft, according to which the sovereign took care of his subjects in return for their fealty. In the 18th century, the general welfare, or salus populi, took on the more positive spirit of the Enlightenment. The goal of human society was not just survival but also happiness, the Swiss jurist Emer de Vattel noted in 1758, and so governments should positively promote “a true and solid felicity” within their countries.

Promoting the general welfare could mean building roads or schools with tax money. It might encourage ingenuity through patents and copyrights or foster public health with quarantines and regulations. And it sometimes required the public to overrule the selfish “rights” of careless or ruthless individuals.

Far from rejecting this tradition, the American revolutionaries gave it a more democratic cast. As Pennsylvania’s new constitution of 1776 put it, governments were made for the “common benefit” of the people, “and not for the particular emolument or advantage of any single man, family, or set of men.” In a republic, the population-at-large rather than any nobility or priesthood was the privileged order — the group deserving of the government’s care. Vermont used similar language the next year, in the modern world’s first constitution prohibiting slavery.

Read the rest here.

Jonathan Turley: Trump WAS Impeached

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Was Trump impeached?

Last weekend Harvard Law professor Noah Feldman argued that Donald Trump will not be officially impeached until the House transmits the articles of impeachment to the Senate.

Jonathan Turley disagrees.

Some of you may remember Turley.  He is the George Washington University law professor who argued before the House Judiciary Committee on December 4, 2019 that there was not enough evidence to impeach Donald Trump. (The other three law professors called to testify–Pamela Karlan of Stanford, Michael Gerhardt of UNC-Chapel Hill, and Feldman–argued that Trump’s phone call to Ukrainian president Zelinsky was an impeachable offense).

In a recent Washington Post op-ed titled “I testified against Trump’s impeachment. But let’s not pretend it didn’t happen,” Turley writes:

Last Saturday in West Palm Beach, Fla., in remarks to a group of young supporters, President Trump road-tested a talking point that appeared to be aimed at changing the narrative around his December impeachment: “You had no crime. Even their people said there was no crime,” he said of congressional Democrats, before adding: “In fact, there’s no impeachment. There’s no — their own lawyers said there’s no impeachment.”

Trump was clearly baiting House Speaker Nancy Pelosi (D-Calif.) after she refused to send her chamber’s two just-passed articles of impeachment to the Senate before leaving town for the holidays. The move caused something of a stalemate with Senate Majority Leader Mitch McConnell (R-Ky.) and precipitated a curious debate about whether Trump is actually impeached. It’s unclear what Pelosi and McConnell may do in their game of constitutional chicken between now and when the House reconvenes in January, but one thing is clear: Trump was impeached.

As I testified earlier this month before the House Judiciary Committee, I was opposed to this impeachment. While I said that this president could be legitimately impeached on these two articles, abuse of power and obstruction of Congress (while rejecting other potential articles like bribery), the record is the thinnest of any modern impeachment to go to the Senate, which could result in a trial as cursory as its investigation. Trump’s suggestion that he remains unimpeached appears based on a theory recently floated by my colleague, Harvard Law School’s Noah Feldman, that “Trump Isn’t Impeached Until the House Tells the Senate.” But while this theory may provide tweet-ready fodder for the president to defend himself and taunt his political adversaries, it’s difficult to sustain on the text or history or logic of the Constitution.

Read the rest here.

Was Donald Trump Impeached?

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Noah Feldman of Harvard Law School is one of the legal scholars who testified before the House Judiciary Committee.  He was one of the three (of four) lawyers who concluded that Trump’s phone call to Ukraine and his obstruction of Congress were impeachable offenses.

In his most recent column at Bloomsberg News, Feldman argues that the House has not yet impeached Donald Trump.

Here is a taste:

If the House does not communicate its impeachment to the Senate, it hasn’t actually impeached the president. If the articles are not transmitted, Trump could legitimately say that he wasn’t truly impeached at all.

That’s because “impeachment” under the Constitution means the House sending its approved articles of to the Senate, with House managers standing up in the Senate and saying the president is impeached.

As for the headlines we saw after the House vote saying, “TRUMP IMPEACHED,” those are a media shorthand, not a technically correct legal statement. So far, the House has voted to impeach (future tense) Trump. He isn’t impeached (past tense) until the articles go to the Senate and the House members deliver the message.

Once the articles are sent, the Senate has a constitutional duty to hold a trial on the impeachment charges presented. Failure for the Senate to hold a trial after impeachment would deviate from the Constitution’s clear expectation.

For the House to vote “to impeach” without ever sending the articles of impeachment to the Senate for trial would also deviate from the constitutional protocol. It would mean that the president had not genuinely been impeached under the Constitution; and it would also deny the president the chance to defend himself in the Senate that the Constitution provides.

Read the entire piece here.

James Dobson Weighs-In on the *Christianity Today* Editorial

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Here is the latest from the court evangelical and family values champion:

I have read a new editorial published by Christianity Today that promotes impeachment of President Donald Trump. The editors didn’t tell us who should take his place in the aftermath. Maybe the magazine would prefer a president who is passionately pro-abortion, anti-family, hostile to the military, dispassionate toward Israel, supports a socialist form of government, promotes confiscatory taxation, opposes school choice, favors men in women’s sports and boys in girl’s locker rooms, promotes the entire LGBTQ agenda, opposes parental rights, and distrusts evangelicals and anyone who is not politically correct. By the way, after Christianity Today has helped vacate the Oval Office, I hope they will tell us if their candidate to replace Mr. Trump will fight for religious liberty and the Bill of Rights? Give your readers a little more clarity on why President Trump should be turned out of office after being duly elected by 63 million voters? Is it really because he made a phone call that displeased you? There must be more to your argument than that. While Christianity Today is making its case for impeachment, I hope the editors will now tell us who they support for president among the Democrat field. That should tell us the rest of the story.”

Statement made in my individual capacity.

Commentary:

  1. I answered most of Dobson’s critiques of Mark Galli’s editorial in Believe Me: The Evangelical Road to Donald Trump.
  2. When a president is removed from office, the vice-president assumes the presidency.  That would be Mike Pence.
  3. The framers of the United States Constitution instituted impeachment to discipline a president who committed “high crimes and misdemeanors” between elections.  Impeachment, in other words, does not overturn a presidential election.  I have seen too many court evangelicals and other pro-Trump pundits make the “overturning the election” argument.  It is wrong.
  4. Trump did not make a phone call that “displeased” Mark Galli.  He made a phone call that asked a foreign nation to investigate a political rival.  In other words, Donald Trump asked Ukraine to interfere in an American election.  The facts are clear.  Over 500 law professors and over 1500 historians agree. This was an abuse of power.

ADDENDUM

Historian Patrick Connelly offers a quote from Dobson made in September 2016 at Christianity Today: “If Trump turns out to be an incorrigible demagogue, we can hope he will be reined in by the political process. There are checks and balances in our system of government.”

Some Founders Wanted an Impeached President to be Suspended from Office Until Tried and Acquitted

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Gouverneur Morris

This did not make it into the Constitution, but John Rutledge of South Carolina and Gouverneur Morris  of Pennsylvania thought it might be a good idea.

September 14, 1787:

Mr. Madison. The President is made too dependent already on the Legislature by the power of one branch to try him in consequence of an impeachment by the other. This intermediate suspension, will put him in the power of one branch only. They can at any moment, in order to make way for the functions of another who will be more favorable to their views, vote a temporary removal of the existing Magistrate.

James Madison’s at the Constitutional Convention on “Impeachment of the Executive”

e89b2-madisonJuly 20, 1787:

Mr. Madison thought it indispensable that some provision should be made for defending the Community agst the incapacity, negligence or perfidy of the chief Magistrate. The limitation of the period of his service, was not a sufficient security. He might lose his capacity after his appointment. He might pervert his administration into a scheme of peculation or oppression. He might betray his trust to foreign powers. The case of the Executive Magistracy was very distinguishable, from that of the Legislature or of any other public body, holding offices of limited duration. It could not be presumed that all or even a majority of the members of an Assembly would either lose their capacity for discharging, or be bribed to betray, their trust. Besides the restraints of their personal integrity & honor, the difficulty of acting in concert for purposes of corruption was a security to the public. And if one or a few members only should be seduced, the soundness of the remaining members, would maintain the integrity and fidelity of the body. In the case of the Executive Magistracy which was to be administered by a single man, loss of capacity or corruption was more within the compass of probable events, and either of them might be fatal to the Republic.

Italics are mine.

A Citizen’s Guide to Impeachment

 

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Confused about impeachment?  Not sure how it all works? Need a primer? Check out Cumberland University history professor Mark Cheathem‘s piece at The Tennessean.

Here is a taste:

The ongoing impeachment process has understandably caused anxiety among Americans.

Some think the process has been rushed and imperfectly investigated, while others believe that it is an attempt to influence next year’s presidential election. Understanding both the constitutional origins of impeachment and the reasons for previous impeachment proceedings should help alleviate these concerns.

Presidential impeachment is discussed in three different sections of the U.S. Constitution. Article 2, Section 4 states that a president “shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” The vague phrase “high crimes and misdemeanors” is confusing, but constitutional experts generally agree that while criminal activity can fall under this provision, actions that would not warrant indictment under the criminal code can also be reasons to impeach a president

The impeachment process itself is broadly outlined in Article 1, Sections 2 and 3, of the Constitution. Section 2 gives the U.S. House of Representatives “the sole Power of Impeachment.” The House essentially serves as the grand jury, deciding whether or not to indict the president. A simple majority vote on even one article means that the president has been impeached.

Section 3 directs the U.S. Senate to oversee the trial portion of the impeachment process. The Senate is charged with deciding whether to remove the president from office based on the impeachment article(s) passed by the House. The chief justice of the Supreme Court presides over this trial. If two-thirds of the Senate vote to convict the president of even one impeachment article, then the president is removed from office. They are also disqualified from “hold[ing] and enjoy[ing] any Office of honor, Trust or Profit under the United States” and are still “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

Read the rest here.

Trump’s Lawyer Writes to Jerry Nadler

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Speaker of the House Nancy Pelosi announcing that the House will move forward with the impeachment of Donald Trump

Yesterday Donald Trump’s White House lawyer Pat Cipollone sent a letter to Jerry Nadler, chair of the House Judiciary Committee.  Here it is:

Dear Chairman Nadler:

As you know, your impeachment inquiry is completely baseless and has violated basic principles of due process and fundamental fairness. Nevertheless, the Speaker of the House yesterday ordered House Democrats to proceed with articles of impeachment before your Committee has heard a single shred of evidence.

House Democrats have wasted enough of America’s time with this charade. You should end this inquiry now and not waste even more time with additional hearings. Adopting articles of impeachment would be a reckless abuse of power by House Democrats, and would constitute the most unjust, highly partisan, and unconstitutional attempt at impeachment in our Nation’s history. Whatever course you choose, as the President has recently stated: “if you are going to impeach me, do it now, fast, so we can have a fair trial in the Senate, and so that our Country can get back to business.”

Several thoughts:

1.  House Democrats have heard plenty of evidence.  The suggestion that there is not a “single shred of evidence” is disingenuous.  It actually sounds like Trump wrote that sentence.  Moreover, this impeachment is not “baseless.”  Even Jonathan Turley, the GOP-chosen lawyer who testified earlier this week, agreed that there were things uncovered by the hearings that needed to be explored more fully.  But how can the House go any further when Trump won’t let people like Bolton, Pompeo, Giuliani, and others testify?  This is obstruction of justice.  Last time I checked, obstruction of justice was a crime.

2. While Cippolino is technically right when he says that “House Democrats” are impeaching Trump, it is actually the House of Representatives as a body that will impeach the president. The Constitution says that the House of Representatives have “the sole power of impeachment.”  It does not say that “House Democrats” or “House Republicans” have the power of impeachment.  There will be a vote and the results of that vote will represent the will of the House of Representatives on impeachment.   Plain and simple.

Many pro-Trumpers are saying that the impeachment process is undermining or delegitimizing the 2016 election.  There are many, many problems with such a suggestion.  For example, if you want to talk about undermining elections, one could say that such a belief undermines the midterm elections of 2018.  Let’s face it, in November 2018 the people spoke.  Now the member of the House of Representatives who were elected by the people are doing what they think is best for the republic.

3.  Cippolino complains that this impeachment is the most partisan impeachment in U.S. history.  However we rank the level of partisanship in this impeachment, it is important to remember that partisanship characterized the Johnson and Clinton impeachment as well as the attempt to impeach Nixon. Hamilton even commented on the partisan nature of impeachment in Federalist 65.  I encourage you to read it.

4. Cippolino says that the impeachment of Trump is “unconstitutional.”  This is impossible.  All impeachments are constitutional. The House always has the constitutional right to impeach the president.  It is part of their job description.

5. Let’s face it,  Donald Trump will be the third U.S. president to be impeached.  He will join Andrew Johnson and Bill Clinton in the history books.  He will be named in future classroom lectures and multiple choice tests.  There will be no asterisk next to his name.  Whether or not he is removed from office or not, this will be his legacy.

Historian Saul Cornell on Originalism and the Impeachment Process

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Fordham University historian Saul Cornell asks, “How should the Constitution’s provisions on impeachment be interpreted?”  I am glad to see a historian weighing-in here.

Here is a taste of Cornell’s piece at The New Republic:

Another problem with originalism’s approach to history is its static (which is to say, decidedly ahistorical) view of the past. American legal and constitutional history did not pause in freeze-frame when the Constitution was ratified in 1789. And constitutional meaning has likewise not remained frozen over the course of American history, a point that the Founding generation well understood. Even James Madison came to recognize that constitutional meaning would evolve, both through the decision of the courts and through actions taken by the people themselves beyond the formal jurisdiction of the courts. In the 1790s, Madison vigorously opposed Alexander Hamilton’s belief that the Constitution allowed the federal government to charter a bank, but by the era of the War of 1812 he had come to realize that such an institution was a necessity—and all branches of the federal government and the American people had also embraced the federally chartered financial system in a host of ways by then.

Finally, in contrast to originalists, liberal legal scholars need to recognize that interpreting the Constitution inevitably requires some form of translation—taking concepts rooted in the realities of the eighteenth century and trying to make sense of them in our own. Perhaps the best way to illustrate the importance of translation to the entire enterprise of constitutional interpretation is to look at a claim made by the ranking Republican member of the House Intelligence Committee, Devin Nunes, during that committee’s impeachment inquiry last month. Nunes claimed that Trump’s efforts to use Rudolph Giuliani to conduct a shadow foreign policy in Ukraine were no different from George Washington’s decision to dispatch John Jay to negotiate a treaty with Great Britain in the 1790s.

In his flat-footed historical analogy, Nunes suggested that his House Democratic colleagues likely would have impeached Washington for dispatching Jay. Of course, any comparison between Giuliani and Jay is preposterous on multiple levels. Jay was a co-author of The Federalist, chief justice of the Supreme Court, and had extensive diplomatic experience, notably stemming from his tenure as the secretary of foreign affairs under the Articles of Confederation. He was not only one of the most distinguished lawyers of the Founding generation but was one of the most experienced diplomats in the new nation. Moreover, at the time that Washington turned to Jay to negotiate a treaty, there was nothing even remotely resembling the modern State Department. The original State Department consisted of six employees. (By 1824, the department’s staff had more than doubled, to a size of 13.) The geopolitics of the Jay overture were also strikingly different from those of the Ukraine affair: Jay was then negotiating for America from a position of weakness with the most powerful nation on earth. In 2019, America was the most powerful nation on earth, and Ukraine was in a position much weaker than America was at the time of the Jay treaty. Finally, and most importantly, Jay was advancing American interests and acting as an official representative of the American nation; he was not a private actor furthering Washington’s personal interests (and his own).

Moreover, if Nunes had dug deeper, he would have learned that many Americans did demand that Washington face impeachment. (Effigies of Jay were burned in cities across the new nation, a fate that Giuliani has thus far avoided.) Washington rebuffed demands from the House of Representatives that he turn over documents related to Jay’s instruction: Indeed, Washington’s decision laid the groundwork for the idea of executive privilege that the Trump administration has repeatedly asserted over the course of today’s impeachment proceedings. (The concept of executive privilege claims no originalist pedigree to speak of. It appears nowhere in the text of the Constitution and can’t be sanctioned by a strict originalist theory of interpretation.) Yet once he’d asserted this privilege, Washington himself expressly conceded that if Congress requested such materials in the context of an impeachment inquiry, he would have to produce them. Thus, a genuine examination of the relevant history here not only undermines Nunes’s facile analogy, but also sets up the foundation for another impeachable offense. The refusal of the Trump administration to turn over documents critical to the House’s impeachment inquiry is itself an example of a high crime and misdemeanor and hence an impeachable offense.

Read the entire piece here.

Four Scholars Will Testify Before the House Judiciary Committee in Tomorrow’s Impeachment Hearing

Turley

Jonathan Turley will be testifying tomorrow before  the House Judiciary Committee

Tomorrow the Judiciary Committee will hear from four witnesses, all constitutional scholars.  They are:

Noah Feldman of Harvard University.  He is also a Bloomberg News columnist and the author of a biography of James Madison.

Pamela Karlan of Stanford University.  She was the U.S. Deputy Assistant Attorney General for Voting Rights in the U.S. Department of Justice Civil Division during the Obama presidency.

Michael Gerhardt of the University of North Carolina.  He is on record saying that the impeachment inquiry is “fully legitimate.” Gerhardt is Scholar in Residence at the National Constitution Center.

Jonathan Turley of George Washington University.  He is a prolific blogger.  He is probably the most familiar face among the four law professors testifying because he is often on television news programs.

Three of these witnesses were selected by Democrats, and one by Republicans.  Based on what I know about Turley, I am guessing that he was chosen by the Republicans.

This should be fun, but why won’t any historians be testifying?

Why Have So Many U.S. Senators Been Silent on Impeachment?

Lindsey

Perhaps Lindsey Graham should think about keeping his mouth shut on impeachment

While people like Lindsey Graham, the South Carolina Senator who seems to have lost his moral compass after the death of John McCain, runs his mouth off about impeachment, other Senators remain quiet.  Some have even taken a “vow of silence.”  As Texas A&M law professor Lynne Rambo notes at The Conversation, such a vow of silence is appropriate.  In an impeachment trial, the Senate serves as the jury.  And who wants members of jury going public with their thoughts about the trial?  Here is a taste of her piece:

 

Several Republican senators have taken a “vow of silence” on the impeachment inquiry in the House of Representatives.

Maine Senator Susan Collins has described her position this way: “I am very likely to be a juror so to make a predetermined decision on whether to convict a president of the United States does not fulfill one’s constitutional responsibilities.”

From a purely political standpoint, the senators’ choice is beneficial for both parties. The senators cannot find it easy to speak approvingly of the president’s opportunistic conduct with foreign countries, so silence is probably the most graceful position for the Republican Party.

The silence is also helpful from the Democratic Party’s perspective. Democrats would no doubt prefer that the senators just abandon Trump immediately, but that seems unlikely to happen. The silence at least preserves the possibility that they will convict Trump if and when the time comes.

That said, there is nothing requiring the senators to remain silent on the issues. No written law or rule instructs senators to take that approach. The Senate’s Rules on Impeachment Trials do not address pretrial conduct at all.

The senators’ choice seems to stem instead from a decision to treat the impeachment proceeding much like a judicial trial. As a professor of Constitutional law, I find that analogy quite apt.

Read the entire piece here.

Federalist 65

Context

To the People of the State of New York:

THE remaining powers which the plan of the convention allots to the Senate, in a distinct capacity, are comprised in their participation with the executive in the appointment to offices, and in their judicial character as a court for the trial of impeachments. As in the business of appointments the executive will be the principal agent, the provisions relating to it will most properly be discussed in the examination of that department. We will, therefore, conclude this head with a view of the judicial character of the Senate.

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. The prosecution of them, for this reason, will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused. In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.

The delicacy and magnitude of a trust which so deeply concerns the political reputation and existence of every man engaged in the administration of public affairs, speak for themselves. The difficulty of placing it rightly, in a government resting entirely on the basis of periodical elections, will as readily be perceived, when it is considered that the most conspicuous characters in it will, from that circumstance, be too often the leaders or the tools of the most cunning or the most numerous faction, and on this account, can hardly be expected to possess the requisite neutrality towards those whose conduct may be the subject of scrutiny.

The convention, it appears, thought the Senate the most fit depositary of this important trust. Those who can best discern the intrinsic difficulty of the thing, will be least hasty in condemning that opinion, and will be most inclined to allow due weight to the arguments which may be supposed to have produced it.

What, it may be asked, is the true spirit of the institution itself? Is it not designed as a method of NATIONAL INQUEST into the conduct of public men? If this be the design of it, who can so properly be the inquisitors for the nation as the representatives of the nation themselves? It is not disputed that the power of originating the inquiry, or, in other words, of preferring the impeachment, ought to be lodged in the hands of one branch of the legislative body. Will not the reasons which indicate the propriety of this arrangement strongly plead for an admission of the other branch of that body to a share of the inquiry? The model from which the idea of this institution has been borrowed, pointed out that course to the convention. In Great Britain it is the province of the House of Commons to prefer the impeachment, and of the House of Lords to decide upon it. Several of the State constitutions have followed the example. As well the latter, as the former, seem to have regarded the practice of impeachments as a bridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded?

Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?

Could the Supreme Court have been relied upon as answering this description? It is much to be doubted, whether the members of that tribunal would at all times be endowed with so eminent a portion of fortitude, as would be called for in the execution of so difficult a task; and it is still more to be doubted, whether they would possess the degree of credit and authority, which might, on certain occasions, be indispensable towards reconciling the people to a decision that should happen to clash with an accusation brought by their immediate representatives. A deficiency in the first, would be fatal to the accused; in the last, dangerous to the public tranquillity. The hazard in both these respects, could only be avoided, if at all, by rendering that tribunal more numerous than would consist with a reasonable attention to economy. The necessity of a numerous court for the trial of impeachments, is equally dictated by the nature of the proceeding. This can never be tied down by such strict rules, either in the delineation of the offense by the prosecutors, or in the construction of it by the judges, as in common cases serve to limit the discretion of courts in favor of personal security. There will be no jury to stand between the judges who are to pronounce the sentence of the law, and the party who is to receive or suffer it. The awful discretion which a court of impeachments must necessarily have, to doom to honor or to infamy the most confidential and the most distinguished characters of the community, forbids the commitment of the trust to a small number of persons.

These considerations seem alone sufficient to authorize a conclusion, that the Supreme Court would have been an improper substitute for the Senate, as a court of impeachments. There remains a further consideration, which will not a little strengthen this conclusion. It is this: The punishment which may be the consequence of conviction upon impeachment, is not to terminate the chastisement of the offender. After having been sentenced to a prepetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law. Would it be proper that the persons who had disposed of his fame, and his most valuable rights as a citizen in one trial, should, in another trial, for the same offense, be also the disposers of his life and his fortune? Would there not be the greatest reason to apprehend, that error, in the first sentence, would be the parent of error in the second sentence? That the strong bias of one decision would be apt to overrule the influence of any new lights which might be brought to vary the complexion of another decision? Those who know anything of human nature, will not hesitate to answer these questions in the affirmative; and will be at no loss to perceive, that by making the same persons judges in both cases, those who might happen to be the objects of prosecution would, in a great measure, be deprived of the double security intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, imported nothing more than dismission from a present, and disqualification for a future, office. It may be said, that the intervention of a jury, in the second instance, would obviate the danger. But juries are frequently influenced by the opinions of judges. They are sometimes induced to find special verdicts, which refer the main question to the decision of the court. Who would be willing to stake his life and his estate upon the verdict of a jury acting under the auspices of judges who had predetermined his guilt?

Would it have been an improvement of the plan, to have united the Supreme Court with the Senate, in the formation of the court of impeachments? This union would certainly have been attended with several advantages; but would they not have been overbalanced by the signal disadvantage, already stated, arising from the agency of the same judges in the double prosecution to which the offender would be liable? To a certain extent, the benefits of that union will be obtained from making the chief justice of the Supreme Court the president of the court of impeachments, as is proposed to be done in the plan of the convention; while the inconveniences of an entire incorporation of the former into the latter will be substantially avoided. This was perhaps the prudent mean. I forbear to remark upon the additional pretext for clamor against the judiciary, which so considerable an augmentation of its authority would have afforded.

Would it have been desirable to have composed the court for the trial of impeachments, of persons wholly distinct from the other departments of the government? There are weighty arguments, as well against, as in favor of, such a plan. To some minds it will not appear a trivial objection, that it could tend to increase the complexity of the political machine, and to add a new spring to the government, the utility of which would at best be questionable. But an objection which will not be thought by any unworthy of attention, is this: a court formed upon such a plan, would either be attended with a heavy expense, or might in practice be subject to a variety of casualties and inconveniences. It must either consist of permanent officers, stationary at the seat of government, and of course entitled to fixed and regular stipends, or of certain officers of the State governments to be called upon whenever an impeachment was actually depending. It will not be easy to imagine any third mode materially different, which could rationally be proposed. As the court, for reasons already given, ought to be numerous, the first scheme will be reprobated by every man who can compare the extent of the public wants with the means of supplying them. The second will be espoused with caution by those who will seriously consider the difficulty of collecting men dispersed over the whole Union; the injury to the innocent, from the procrastinated determination of the charges which might be brought against them; the advantage to the guilty, from the opportunities which delay would afford to intrigue and corruption; and in some cases the detriment to the State, from the prolonged inaction of men whose firm and faithful execution of their duty might have exposed them to the persecution of an intemperate or designing majority in the House of Representatives. Though this latter supposition may seem harsh, and might not be likely often to be verified, yet it ought not to be forgotten that the demon of faction will, at certain seasons, extend his sceptre over all numerous bodies of men.

But though one or the other of the substitutes which have been examined, or some other that might be devised, should be thought preferable to the plan in this respect, reported by the convention, it will not follow that the Constitution ought for this reason to be rejected. If mankind were to resolve to agree in no institution of government, until every part of it had been adjusted to the most exact standard of perfection, society would soon become a general scene of anarchy, and the world a desert. Where is the standard of perfection to be found? Who will undertake to unite the discordant opinions of a whole commuity, in the same judgment of it; and to prevail upon one conceited projector to renounce his INFALLIBLE criterion for the FALLIBLE criterion of his more CONCEITED NEIGHBOR? To answer the purpose of the adversaries of the Constitution, they ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.

PUBLIUS.

Source

For more context I recommend this book.

“A republic, if you can keep it”: The Elizabeth Powel side of the story

ELIZA-PORTRAIT-1200x480-1200x0-c-default

Some of you may recall court evangelical Eric Metaxas’s book A Republic, If you Can Keep It.  The book is riddled with historical problems and I reviewed it in a series of blog posts.  You can read it here.

Lately, both Speaker of the House Nancy Pelosi and Supreme Court justice Neil Gorsuch have also invoked Ben Franklin’s famous phrase.

But as historian Zara Anishanslin notes, most people who use the phrase “A republic, if you can keep it” forget that Ben Franklin uttered these words to a Philadelphia woman named Elizabeth Willing Powel.

Here is a taste of her piece at The Washington Post:

Last month, when House Speaker Nancy Pelosi (D-Calif.) announced a formal impeachment inquiry of President Trump, she used a familiar anecdote to back her arguments. As Pelosi told it, “On the final day of the Constitutional Convention in 1787, when our Constitution was adopted, Americans gathered on the steps of Independence Hall to await the news of the government our founders had crafted. They asked Benjamin Franklin, ‘What do we have, a republic or a monarchy?’ Franklin replied, ‘A republic, if you can keep it.’ Our responsibility is to keep it.”

Franklin’s “a republic, if you can keep it” line is as memorable as it is catchy. It is a story that appeals across partisan lines. The same month Pelosi referenced it, Supreme Court Justice Neil M. Gorsuch released a book titled “A Republic, If You Can Keep It.” It’s a recognizable national origin story with broad appeal; Pelosi was savvy to use it.

But she got the story wrong. So did Gorsuch. 

Read the entire piece here.

Chernow: Alexander Hamilton Would Have Endorsed the Impeachment of Trump

2b571-hamiltonHamilton biographer Ron Chernow weighs-in on impeachment at The Washington Post.  Here is a taste:

President Trump has described the impeachment proceedings as a “coup,” and his White House counsel has termed them “unconstitutional.” This would come as a surprise to Alexander Hamilton, who wrote not only the 11 essays in “The Federalist” outlining and defending the powers of the presidency, but also the two essays devoted to impeachment.

There seems little doubt, given his writings on the presidency, that Hamilton would have been aghast at Trump’s behavior and appalled by his invitation to foreign actors to meddle in our elections. As a result, he would most certainly have endorsed the current impeachment inquiry. It’s not an exaggeration to say that Trump embodies Hamilton’s worst fears about the kind of person who might someday head the government.

Among our founders, Hamilton’s views count heavily because he was the foremost proponent of a robust presidency, yet he also harbored an abiding fear that a brazen demagogue could seize the office. That worry helps to explain why he analyzed impeachment in such detail: He viewed it as a crucial instrument to curb possible abuses arising from the enlarged powers he otherwise championed.

Read the rest here.