Tuesday night court evangelical roundup

COurt Evangelicals

What have Trump’s evangelicals been saying since yesterday’s update?

Franklin Graham is on the stump for Trump. This is from his Facebook page :

In the last presidential election in 2016, I reminded people across the country that the election was not about Donald Trump’s previous lifestyle or Hillary Clinton’s lost emails, but it was about the courts—Who do you trust to appoint conservative judges to the courts? Donald J. Trump won the election, and in the next few days he will be making his 200th judicial appointment. That’s more than any president in the last four decades during the same time frame. Thank you Mr. President! This will be a legacy that truly will keep on giving—in the lives of our children, grandchildren, and great grandchildren.

And Twitter:

Al Mohler is questioning science and COVID-19 experts and promoting a Trumpian populism:

Charlie Kirk is running a “Students for Trump” convention in Arizona featuring Donald Trump.

A few observations:

  • In the opening prayer of this convention, the minister thanked God that “All Lives Matter.” The prayer was filled with Christian nationalism, law and order, and Trump talking points. The crowd cheered during the prayer at the appropriate points.
  • Ryan Fournier, the founder of Students for Trump, calls the event “the most aggressive political outreach movement in political presidential campaign history.” Wow!  That’s specific.
  • Florida Matt Gaetz spoke. So did Donald Trump Jr.
  • Trump said nothing new to the 2000 students who showed-up. It was just another campaign rally.

Eric Metaxas interviews one of his “mentors in terms of thinking of race in America,” conservative talk show host Larry Elder. Elder talks about his new documentary film “Uncle Tom.” Elder makes the common claim that the Democrats opposed the 13th Amendment (ending slavery), 14th Amendment (equal protection under the law for African.Americans), and 15th Amendment (African American right to vote). This is largely true, but he fails to consider that the Democratic Party of the 1860s and 1870s is not the Democratic Party of today. See Princeton historian Kevin Kruse’s debate (if you can all it that) with conservative pundit Dinesh D’Souza. This entire argument ignores a fundamental element of historical thinking: change over time. Metaxas totally endorses Elder’s approach, claiming that Americans “don’t know the facts.” Elder and Metaxas are peddling some really bad history here.

Elder claims that racism “is no longer a problem” in American life. This reminds me of a family member who recently told me that I was “living in the past” by suggesting that the history of racial discrimination in America might have something to do with race in America today.

In his second hour, Metaxas and his crew argue that the division in the country is the work of Satan, “the accuser.” Metaxas has the audacity to say that Satan “takes things that are true and twists them into a lie.” Wait, I thought Metaxas supported Trump! 🙂

Metaxas wants a view of history that celebrates all that is good in America. He extols all the Bible-believing Christians who were abolitionists. Yes, this is true. There were many good Christians who fought against slavery. But the present always shapes how we think about the past. As the country is trying to come to grips with racism–both individual acts of racism and the deeper problem of systemic racism–now is the time to take a deep, hard look at how we got here. That will mean taking a hard look at the dark moments of the white evangelical past. This is not the time to get defensive and engage in whataboutism. (Hey, what about Harriet Beecher Stowe!).

Metaxas then interviews Jenna Ellis of the Liberty University Falkirk Center.  In this interview, Metaxas says that “the only reason we abolished slavery is because of the Bible.” This is not entirely true, as I argued in Believe Me.  Slaveholding southerners actually used the Bible to justify slavery and accused northern abolitionists of not being biblical enough. As multiple historians have shown, the Bible was used to fortify racial discrimination to a much greater extent than the Bible was used to end slavery or advance racial justice in America. But Metaxas doesn’t care about that. He needs a usable past. Everything else can be conveniently ignored.

Speaking of the Falkirk Center at Liberty University:

And Lance Wallnau brings the fearmongering:

Until next time.

“Genuine Christian Faith is Larger Than the Constitution”

Corona Church

It looks like more than 1200 California pastors will hold in-person services this weekend in violation of Governor Gavin Newsoms’s stay-at-home order. Read their letter to Newsom here.

Here is Peter Marty, publisher of The Christian Century:

What’s motivating this willingness to put the lives of church members at risk in order to assert First Amendment rights? I don’t think it has anything to do with an honest conviction that various governors can’t stand religion. It has everything to do with an obsession over rights.

The language of rights is the language of power. “No right is safe unless it can be carried to an extreme,” conservative political philosopher Harvey Mansfield once remarked. This may be what we’re witnessing at the moment. Even though all rights have limits—you can’t shout “Fire!” in a crowded movie theater—the absolutizing of rights has become a distorted feature of American politics.

Legal scholar Mary Ann Glendon calls it “the illusion of absoluteness.” In her 1991 book Rights Talk, she points out that when talk of rights turns absolute it inhibits conversation, silences responsibility, and downplays obligation toward the common good. She writes that the “relentless individualism” promoted by such rights talk “fosters a climate that is inhospitable to society’s losers, and systematically disadvantages caretakers and dependents, young and old.”

Rights are certainly important. But there’s a reason the Bible shows little interest in individual rights. If I see my life primarily as a prepackaged set of guaranteed rights owed me, instead of as a gift of God, what motivation is there to feel deep obligation toward society’s most vulnerable? If I’m just receiving what’s my rightful due, why would I ever need to express gratitude? What’s the point of looking outward toward others if I’m chiefly responsible for looking inward and securing the personal rights that are mine?

I want a faith that’s larger than the US Con­sti­tution…. 

Read the entire piece here.

Is Trump’s Authority “Total” When It Comes to Reopening the Economy?

Trump Press Conference

Short answer: No.

Although he would obviously like it to be.

The Washington Post talked to some constitutional scholars.  Here is a taste of Meagan Flynn’s and Allyson Chiu’s piece:

When President Trump was asked during Monday’s news briefing what authority he has to reopen the country, he didn’t hesitate to answer. “I have the ultimate authority,” the president responded, cutting off the reporter who was speaking.

Trump later clarified his position further, telling reporters, “When somebody is the president of the United States, the authority is total and that’s the way it’s got to be. … It’s total. The governors know that.”

The local leaders, Trump said, “can’t do anything without the approval of the president of the United States.”

Trump’s eyebrow-raising assertions about the reach of his office during national emergencies, which were also echoed by Vice President Pence at the briefing, came on the same day governors on both coasts announced their own plans to begin working toward reopening their states amid the ongoing global coronavirus pandemic.

While the president appears convinced he is the only one empowered to make the critical determination, his extraordinary assertions of authority over the states astounded legal scholars, leaving them wondering, as they have before about Trump’s broad claims, where on earth he got them.

“You won’t find that written in the Federalist Papers anywhere,” Robert Chesney, a law professor at the University of Texas at Austin, told The Washington Post.

Not only does the power Trump asserted have no basis in reality, experts said, but it’s also completely antithetical to the Constitution, the concept of federalism and separation of powers — whether during a time of emergency or not.

“This isn’t ancient Rome where there’s a special law that says in the event of an emergency all the regular rules are thrown out the window and one person, whom they called the dictator, gets to make the rules for the duration of the emergency or for a period of time,” Chesney said. “We don’t have a system like that.”

On Twitter, Steve Vladeck, another professor at the University of Texas School of Law, rebutted Trump’s “authority is total” remark.

“Nope,” Vladeck wrote. “That would be the literal definition of a *totalitarian* government.”

Read the rest here.

Andrew Cuomo: No governor should watch Trump’s press conferences. They are “infuriating,” “offensive,” and “frankly ignorant of the facts.”

He is not “King Trump.” Watch:

We are now in a strange moment in our political history.  A Republican president with a constituency that values the 10th Amendment is claiming to have absolute power over the states.

Here is an revealing take on all of this from historian Seth Cotlar:

 

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?

Impeachment Image

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”

Dershowitz

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?

House Managers

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

Trump impeachment

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?

Cassidy-ImpeachmentGOPMemo

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

 

Impeachment trial

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

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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?