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.

Will Future Students Read Mitt Romney’s Speech Against Trump’s Acquittal?

Eliot Cohen, Dean of the Johns Hopkins University School of Advanced International Studies, thinks Romney’s speech will be read for a long time.  Here is a taste of his piece at The Atlantic, “In the Long Run, Romney Wins“:

Political speeches derive their power and durability from authenticity, from the way in which phrases and sentences seem to emanate directly from a personality and its vision. That is why Lincoln’s speeches will never lose their force: They captured the dignity, simplicity, and courage of the man who made them. Romney is no Lincoln, but he wrote the speech, and the voice is his.

Yet more is at work here than the powerful words. The speech contained all the elements of drama: the man of quiet faith, whose presidential campaign underplayed his charitable works; the handsome politician, whose political career involved both high office and the failure to achieve it; the public figure, who briefly became a hero to opponents who had shamefully vilified him seven years earlier; the successful businessman, who returned repeatedly to public affairs; the patriarch of a large and loving family, whose own niece repeatedly yielded her conscience to the man he rightly condemned. Comparing Romney with the grifter president and his venal clan yields an instructive contrast.

The Romney story plays to something very deep in the American self-conception, to myth—not in the sense of fairy tale or falsehood, but of something Americans want to believe about who they are and who, because of what they want to believe, they can become. Americans embrace the story of the lone man or woman of conscience who does the right thing, knowing that the risks are high. They remember Rosa Parks refusing to give up her seat for a white passenger on a Montgomery bus in 1955, but forget the three other passengers who prudently moved. They relish the staple theme of Western stories and films—John Wayne in Stagecoach saying, “Well, there’s some things a man just can’t run away from.” They honor John Adams for defending British soldiers accused of shooting down his fellow Americans, in an era when tar and feathers could be the consequence of that act. In an altogether different vein, they laud Henry David Thoreau for choosing civil disobedience and marching to the beat of his own drum, resolved to remain indifferent to what his fellow Yankees thought of him.

Read the entire piece here.

Thank You Mitt Romney!

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I tweeted this last night:

I think it’s fair to say that Michael Gerson agrees with me. (Or maybe I agree with him).  Here is a taste of his recent Washington Post column:

Romney’s response on the Senate floor was brief and direct. He stood up for institutionalism. The Constitution, he argued, grants an essential role to voters. But removing a president for high crimes and misdemeanors is a power specifically delegated to the U.S. Senate. The punishment of presidential corruption and abuse of power is not entrusted to a plebiscite. It is the responsibility of senators, who are not serving the constitutional order by surrendering their proper role within it.

Romney stood up for the role of facts in our public life. The truth, he argued, does not depend on the needs and demands of our political tribe. At the center of impeachment was a factual question: Did the president commit an act so serious that it rises to the level of a high crime and misdemeanor? “Yes,” said Romney, “he did.”

And Romney stood up for the role of individual conscience in our political life. “Were I to ignore the evidence that has been presented,” he said, “and disregard what I believe my oath and the Constitution demands of me for the sake of a partisan end, it would, I fear, expose my character to history’s rebuke and the censure of my own conscience.”

Read the entire piece here.

More GOP Senators Make the “Let the People Decide” Argument to Defend Their Votes for Trump’s Acquittal

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Last weekend it was Lamar Alexander.  Yesterday it was Lisa Murkowski.  Today it was Susan Collins and Joni Ernst.

As I argued (with the help of historian Jeffrey Engel) last weekend in the case of Marco Rubio, in an impeachment trial a Senator can vote however they want to vote.  They don’t have to explain their vote.  They can argue that Trump committed an impeachable act (Collins and Ernst do not go this far) and still choose to acquit him.

Alexander, Murkowski, Collins, Ernst all believe that Trump did something wrong when he asked Ukraine to investigate Joe Biden.  Alexander said that the framers of the Constitution believed that it was the “people” through the “ballot”who should remove a president in an election year. This is an absurd historical claim.  Though Murkowski, Collins, and Ernst do not appeal to the founding fathers, they seem to accept Alexander’s argument.

So here is my question for these Senators:  How will you hold Trump accountable for what he did?  Is delaying the acquittal vote until Wednesday in order to make Trump deliver tonight’s State of the Union address amid an impeachment trial enough of a punishment? If Trump did something wrong, as the majority of Senators believe, how will the Senate exercise its constitutional requirement to check the executive branch?

What the Senate’s Refusal to Remove Donald Trump Means for (at least) the Next Nine Months

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The Senate will inevitably acquit Donald Trump this weekend.  Unless something happens in the next couple of hours, we will not hear from additional witnesses, including John Bolton.

Once the vote is taken, Donald Trump will be unconstrained for at least the next nine months.  Congress will have no power over him. He will give his State of the Union speech next week and no doubt bask in his victory in this impeachment trial as his supporters in Congress cheer his depravity

There is now nothing to stop Donald Trump from getting on the phone tomorrow, calling Ukrainian president Zelinsky, and asking him to start investigating Joe Biden in exchange for additional aid to Ukraine or some other “favor.”

Wofford University history professor Mark Byrnes recent tweet about Lamar Alexander’s recent statement can be applied to almost all the GOP Senators “He concedes that Trump did something ‘inappropriate’ to try to affect the election, and then says the only remedy is election.”

Lamar Alexander’s Statement is Full of Historical Problems

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If Lamar Alexander wants to oppose witnesses in the Donald Trump impeachment trial he has that right.  But spare us the “history” lesson.

Alexander statement says:

I worked with other senators to make sure that we have the right to ask for more documents and witnesses, but there is no need for more evidence to prove something that has already been proven and that does not meet the United States Constitution’s high bar for an impeachable offense.

So it sounds like Alan Dershowitz’s “absurd” and “baffling” argument convinced the senior Senator from Tennessee.  In embracing the Dershowitz argument, Alexander has chosen to reject the consensus of legal scholars and American historians.

Alexander continues:

“There is no need for more evidence to prove that the president asked Ukraine to investigate Joe Biden and his son, Hunter; he said this on television on October 3, 2019, and during his July 25, 2019, telephone call with the president of Ukraine. There is no need for more evidence to conclude that the president withheld United States aid, at least in part, to pressure Ukraine to investigate the Bidens; the House managers have proved this with what they call a ‘mountain of overwhelming evidence.’ There is no need to consider further the frivolous second article of impeachment that would remove the president for asserting his constitutional prerogative to protect confidential conversations with his close advisers.

“It was inappropriate for the president to ask a foreign leader to investigate his political opponent and to withhold United States aid to encourage that investigation. When elected officials inappropriately interfere with such investigations, it undermines the principle of equal justice under the law. But the Constitution does not give the Senate the power to remove the president from office and ban him from this year’s ballot simply for actions that are inappropriate.

So what is the difference between an “impeachable” offense and an “inappropriate” offense?  Again, Alexander has been swayed by Dershowitz’s argument.  Alexander believes that the president is guilty, but he does not believe that Trump committed an impeachable offense.  (Dershowitz doesn’t think Trump is guilty of anything). This is also clear from the next part of Alexander’s statement:

“The question then is not whether the president did it, but whether the United States Senate or the American people should decide what to do about what he did. I believe that the Constitution provides that the people should make that decision in the presidential election that begins in Iowa on Monday.  

“The Senate has spent nine long days considering this ‘mountain’ of evidence, the arguments of the House managers and the president’s lawyers, their answers to senators’ questions and the House record. Even if the House charges were true, they do not meet the Constitution’s ‘treason, bribery, or other high crimes and misdemeanors’ standard for an impeachable offense.

Alexander goes on:

“The framers believed that there should never, ever be a partisan impeachment. That is why the Constitution requires a 2/3 vote of the Senate for conviction. Yet not one House Republican voted for these articles. If this shallow, hurried and wholly partisan impeachment were to succeed, it would rip the country apart, pouring gasoline on the fire of cultural divisions that already exist. It would create the weapon of perpetual impeachment to be used against future presidents whenever the House of Representatives is of a different political party.

“Our founding documents provide for duly elected presidents who serve with ‘the consent of the governed,’ not at the pleasure of the United States Congress. Let the people decide.”

On the issue of “partisan” impeachments and the founders, here is historian Joanne Freeman:

Moreover, as historian Kevin Kruse has been reminding us, there were no political parties when the founders wrote the Constitution:

Alexander also suggests that the “founding documents” teach that “the people” should decide whether to move a president.  Here he is connecting “impeachment” with the vote and will of “the people.” But the Constitution makes no such connection.

First, as James Madison made clear in Federalist 39, “The President of the United States is impeachable at any time during his continuance in office.” In other words, the president can be impeached during an election year.

Second, the framers were skeptical about trusting the people to make decisions about important matters such as impeachment.  The framers did not trust the “ballot”on impeachment.  Read the Constitution as it was written in 1787.  Senators were not directly elected by the people.  They were appointed by state legislatures. This is precisely why the framers believed that the Senate was best suited to serve as judges in an impeachment trial. The “people” in the House of Representatives brought charges in the president (impeachment), but the Senate, those so called “gods on Mount Olympus,” would decide whether or not the people were right (removal). As Madison wrote in Federalist 10, the passions of the people needed to be filtered through “a medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.”  In fact, the framers of the Constitution had such a mistrust of the people that they did not allow them to vote directly for the president.  It is worth noting that they did not even record the popular vote in presidential elections until 1824.

In the end, Lamar Alexander can oppose impeachment trial witnesses for all kinds of reasons, but please don’t appeal to the founders.

Alexander’s sketchy use of the founding-era is particularly troubling considering that he has always been a strong advocate for more history and civics in public schools.

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.

“They come for the power for power they stay”

Song of the Day (HT: Dan Cohen):

It’s built to impress you and it works like that
All that white marble and the guards at the door
The metal detector, the following eyes
Geometric patterns covering the floor
The symbols of power, eagles and flags
Attendants, assistants moving like sharks
Through crowds of citizens, patriotic souls
Visiting the capitol and National Parks
And you think to yourself
This is where it happens
They run the whole damned thing from here
Money to burn
Filling up their pockets
Where no one can see
And no one can hear
I wonder what they say, say to each other
How do they think, what do they feel
When they come out of those rooms
And put on their faces
Is anything they say to the cameras real?
They come for the power for power they stay
And they’ll do anything to keep it that way
They’ll ignore the constitution
And hide behind the scenes
Anything to stay a part of the machine
And you think to yourself
This is where it happens
They run the whole damned thing from here
Money to burn
Filling up their pockets
Where no one can see
And no one can hear
And the votes are just pieces of paper
And they sneer at the people who voted
And they laugh as the votes were not counted
And the will of the people was noted
And completely ignored
And you think to yourself
This is where it happens
They run the whole damned thing from here
Money to burn
Filling up their pockets
Where no one can see
And no one can hear

Doug Collins is Running for Senate in Georgia

Doug Collins

He became a national figure during the House impeachment hearings.  Now Georgia congressman Doug Collins is running for Senate.  Here is a taste of Richard Elliot’s piece at the website of WSB-TV in Atlanta:

U.S. Rep. Doug Collins, R-Ga., made it official Wednesday that he is running for the U.S. Senate seat that Johnny Isakson had held.

Sen. Kelly Loeffler currently holds the seat after Gov. Brian Kemp’s handpicked her to fill it when Isakson resigned at the end of December.

Georgia evangelicals make up a big voting block in the Republican Party. Right now, the Faith and Freedom Coalition is keeping back and not taking an official stance on either candidate.

But that didn’t stop Kemp from asking them to support his pick for senator Wednesday.

Collins waiting until an appearance on “Fox and Friends” Wednesday morning to make the official announcement.

“I know there’s been some discussion about it, and I’ve been asked by y’all before about the Senate race down there, and I’m just going to confirm we’re in for the Georgia Senate race down here,” Collins said.

Collins is hoping for an endorsement from President Donald Trump.

Read the rest here.

Collins, you may recall, apologized for claiming on Fox News that Nancy and Pelosi and the Democrats cared more about Iranian military leader Qased Soleimani than American soldiers. He also said that the Democrats were in love with terrorists.

Collins is an evangelical Christian.  He has a Masters of Divinity degree from New Orleans Baptist Theological Seminary.  He served as the senior pastor of Chicopee Baptist Church.  He currently attends Lakewood Baptist Church in Lakewood, Georgia.

What John Bolton’s Testimony Will Reveal About Republican Senators

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Mitt Romney: “Situational Trumpian”

Here is Damon Linker at The Week:

With it looking increasingly likely that Sen. Majority Leader Mitch McConnell won’t be able to prevent a vote in favor of calling witnesses in the impeachment trial of President Trump, the GOP finds itself in a tight spot.

Everyone agrees that there’s something close to a zero chance that 20 — and only a tiny chance that any — Republicans will join with 47 Democrats to vote in favor of convicting and removing the president from office, no matter what Trump’s former National Security Adviser John Bolton says under oath. (Conviction and removal would require an affirmative vote of 67 senators.) Yet allowing Bolton to testify about what’s apparently in his forthcoming book — namely, that in August 2019 the president understood himself to be withholding badly needed aid to Ukraine in order to get its president to announce he was opening an investigation of former Vice President Joe Biden and his son Hunter Biden — would force Republicans to clearly reveal where they stand on the most important issue dividing the party.

Linker argues that Bolton’s testimony will reveal three kinds of Republicans:

  1. “The full-on-reality-warping Trumpians”
  2. “The moral-relativist Trumpians”
  3. “Situational Trumpians”

Read how Linker defines these categories here.

When Political Loyalty Trumps Moral Clarity

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We are in the third day of the Donald Trump Senate impeachment trial.  Kentucky Senator Rand Paul has already gone on record saying that the entire trial is a “partisan charade.”

Other GOP Senators have also weighed-in:

Whether you call the Senators “jurors” or “judges,” something is not right about a Senator writing tweets like this during such an important trial.  This impeachment trial is not a hoax.  The Constitution says that the House of Representatives has the authority to impeach the president.  This has happened.  Some Senators may not like that this has happened, but it did.  Senators now have a responsibility to sit quietly, listen to evidence, and make a decision about whether or not to remove the president.

This impeachment trial is just the latest example of how political partisanship distorts critical thinking and basic morality.

I don’t see how any Senator can be confronted with the evidence we have heard over the last two days and not think that Donald Trump has done something immoral. We can debate whether or not what Trump did was an impeachable offense, but can we truly say that he acted in a morally upright way in this whole Ukraine mess?  Was this really a “perfect call?”

Why won’t these GOP Senators speak-up?  Why won’t they publicly admonish Trump for his blatant immoral behavior?  Why have they remained silent or commented on Trump’s immorality with phrases like “Well, that’s just his style” or “if it was me, I wouldn’t have used those words.”  Why do they take media opportunities to defend Trump?  I hope people like Mitt Romney, Ben Sasse, Cory Gardner, Tom Cotton, Marco Rubio, roy Blunt, Richard Burr, Rick Scott, Rob Portman, James Lankford, Pat Toomey, Tim Scott, John Thune, Bill Cassidy, and Lamar Alexander will answer these questions for me.  Mitt Romney is a Mormon.  Sasse, Rubio, Blunt, Lankford,, Tim Scott, Rick Scott, and Thune are evangelical Christians.

Most of these Senators can think critically and make decisions based on evidence.  Many of them have a sense of right and wrong.  But their critical faculties and moral capacities are held captive by political partisanship.  Party loyalty weakens independent thinking.  Party loyalty undermines moral clarity.

On John Roberts and Pettifogging

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Watch Chief Justice John Roberts here.  (For some reason You Tube will not let me access its embedding codes today).

Pettifogging: “worrying too much about details that are minor or not important.”  It was often used a derogatory statement about lawyers.

Charles Swayne was a U.S. District Court judge for the Northern District of Florida.  He was appointed by Benjamin Harrison in 1889 and confirmed by the Senate in 1890.  The House of Representatives impeached him on December 13, 1904 for “filing false travel vouchers, improper use of private railroad cars, unlawfully imprisoning two attorneys for contempt outside of his district. (Sounds like pettifogging to me! 🙂 ) Swayne admitted to the charges and called his lapses “inadvertent.” The Senate found him “not guilty” on February 27, 1905.

You can read the excerpt from the trial, including the use of the word “pettifogging,” here (p.188).

You can also read an edited excerpt of the proceedings from Hinds’ Precedents of the House of Representatives.

A few thoughts:

First, we can always use more civil discourse.  Of all the House Managers, Nadler is the most obnoxious.  Cipollone and Sekulow seems to be performing for Donald Trump.

Second, John Roberts came to the Trump impeachment trial prepared.  He anticipated this kind incivility and was ready with the “pettifogging” quote from the 1905 Swayne trial.  Nice work.  We will see what he has up his sleeve today.

Third, is Roberts right when he says that the Senate is the “world’s greatest deliberative body” because “its members avoid speaking in a manner and using language that is not conducive to civil discourse?” This is how the framers may have envisioned the Senate, but American history suggests that Roberts may be too optimistic about this legislative body.  Here is Yale historian Joanne Freeman in Field of Blood: Violence in Congress and the Road to the Civil War:

…the Senate was generally calmer than the House.  Smaller in size, with its acoustics in working order and its members a little older, more established, more experienced, and sometimes higher on the social scale, it was a true forum for debate….Debate in the Senate was thus more of a dialogue–long winded, agenda-driven, and something of a performance, but a dialogue just the same. That doesn’t mean the Senate was a haven of safety.  It wasn’t  There were plenty of threats and insults on the floor. Henry Clay (W-KY) was a master.  His attack in 1832 on the elderly Samuel Smith (J-MD), a Revolutionary War veteran and forty-year veteran of the Senate, was so severe that senators physically drew back, worried that things might get ugly.  Clay called Smith a tottering old man with flip-flopping politics; Smith denied it and countered that he could “take a view” of Clay’s politics that would prove him inconsistent; and Clay jeered “Take it, sir, take it–I dare you!”  Smith defended himself, but when he later sought the advice of John Quincy Adams (clearly Fight Consultant Extraordinaire), Smith was do deeply wounded that he was on the verge of tears.

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.

Who Presided Over Andrew Johnson’s Impeachment Trial?

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On Thursday, Chief Justice John Roberts began presiding over the Donald Trump impeachment trial.

Over at The Washington Post, Michael Rosenwald writes about Salmon P. Chase, the Chief Justice who presided over Andrew Johnson’s impeachment trial in 1868.  Here is a taste of his piece, “The chief justice who presided over the first presidential impeachment trial thought it was political spectacle“:

Johnson was on trial for, among other things, violating the Tenure of Office Act in 1867, which said the president couldn’t fire important government officials unless he got the go-ahead from the Senate. Johnson had fired the secretary of war, Edwin M. Stanton, without consulting the Senate. Cue impeachment.

Chase thought the whole thing was much ado about nothing.

“Chase had profound misgivings about the trial,” Niven wrote. “He considered the articles more of partisan rhetoric than substantive evidence for a conviction.”

In a letter to Gerrit Smith, a fellow abolitionist and former congressman, Chase wrote that “the whole business seems wrong, and if I had any opinion, under the Constitution, I would not take part in it.”

Chase suspected the whole business would become a public spectacle.

Read the entire piece here.

I Think the Circus Just Came to Washington

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Alan Dershowitz

In case you haven’t heard, Trump has added Ken Starr, Alan Dershowitz, and Robert Ray to his defense team.  I think the days of Dershowitz receiving dinner invitations on Martha’s Vineyard are over.  The shunning will only get worse.

In case Trump needs more lawyers, Robert Shapiro, F. Lee Bailey, and Barry Scheck are still alive.  (Unfortunately for Trump, Johnnie Cochran and Robert Kardashian have passed away).

Let the show begin.  This trial is going to be reality television at its “finest.”

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.

Mitt, I’ve Always Liked You. Please Break With Your Party Again

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Over at The Washington Post, Katherine Rampell writes about how Mitt Romney broke with many of his GOP colleagues in his decision to support an expansion of the child tax credit.

Now it is time for Romney to break with his party again and vote to remove the President of the United States from office.  At the very least, Romney should make it difficult for Mitch McConnell to prevent the calling of Trump staff members as witnesses in the Senate impeachment trial.

It is time for Trump’s vocal GOP critics–Romney, Rubio, Sasse, Collins, and Murkowski–to step-up to the plate.  Don’t let us down Mitt!

ABC News/Washington Post Poll: 7 in 10 Americans Want Mulvaney and Bolton to Testify in Impeachment Trial

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Here is ABC News:

Seven in 10 Americans in a new ABC News/Washington Post poll say President Donald Trump should allow his top aides to testify in a Senate trial on the impeachment charges against him, and six in 10 expect a fair trial in the Senate, two points of majority agreement — across party lines — in the otherwise divisive impeachment saga.

More than half, 55%, also say Trump was treated fairly in the House Intelligence and Judiciary Committee hearings that led to the articles of impeachment against him. But partisan divisions on this question are vast, as they are on most other impeachment issues.

Read the entire piece here.

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

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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.