The Volokh Conspiracy

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The Volokh Conspiracy

More on the Judge, the Lawyer, and When the Grandfather Died

The saga of Richard Liebowitz (alleged "copyright troll," though that's tangential to this particular controversy) continues.

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I wrote about the case last week; there are now more developments, reported by The Smoking Gun under the headline, "Federal Judge Pummels Lying Litigator In Unrelenting Courtroom Beatdown":

In a remarkable courtroom pummeling, a federal judge today branded a notorious copyright lawyer an inveterate liar who undertook a "concerted campaign of deception" that has left her questioning the attorney's "fitness to practice."

In a 70-minute hearing in her White Plains, New York courtroom, Judge Cathy Seibel this morning delivered a blistering denunciation of Richard Liebowitz's behavior in connection with a civil lawsuit he brought last year on behalf of a photographer.

As detailed in a TSG story published Monday, Liebowitz (seen at right) lied to Seibel when asked to explain why he failed to show up for an April 12 court hearing. Liebowitz claimed that his grandfather had died on the morning of the hearing, and that, "I needed to immediately arrange to be with my family during this difficult time." Liebowitz told Seibel, "In the Jewish religion certain customs needed to be done before the Sabbath that I needed to assist in. I truly hope the Court understands this emergency."

Read the story (and follow the links) for more. Thanks to reader Theodore Shulman for the pointer.

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  1. An absolute classic example of “the coverup is worse than the crime”.

    Liebowitz is an experienced lawyer. His inability to read that the Judge was not going to let him off the hook until he stopped lying is absolutely astounding.

    If I were to psychoanalyze, I would say this- perhaps some of the more dishonest members of my profession are so used to judges letting stuff go, or just imposing a minor sanction, that they figure they can just lie their way out of anything and the judge will eventually drop it or impose a sanction and move on. So the notion that “OK, now the judge is on my butt, I need to back down and apologize and fess up” just never enters their brain.

    But this is a truly healthy exercise. This is a great chance for the judiciary to make an example of someone, to say the rest of the world of lawyers, “don’t do this kind of thing”.

    1. And by the way, even in the hearing reported on by TSG, he STILL DIDN’T FESS UP. He and his lawyers said he was inexperienced, he was grieving from the death (not on April 12) of his grandfather, it was an honest mistake.

      JFC!

      1. Maybe he meant that the decision to keep lying to the court was the mistake, honestly.

      2. I could see the very first mistake — missing the deposition and not notifying the court — being an honest one, if his grandfather had died three days before.

        What he should have done was tell the truth about why he missed the court date. He probably could have gotten away with that, and I’d guess even have avoided paying for the other party’s costs (IANAL — just guessing!). But once he started down the lying path, his goose was cooked.

        1. It wasn’t a deposition that he missed; it was a discovery conference.

          And the problem he had is that it’s very likely — Judge Seibel seemed to think so — that he had deliberately skipped it because he was facing scrutiny over his discovery practices and was trying to avoid being called to account for it.

          1. The type of meeting didn’t matter to me, but now I see it should have; I didn’t pick up on the suspicion that he had intentionally missed it to cover up his sloppy practices. Thanks.

        2. The problem is, the grandfather died on 4/9 and he missed a hearing on 4/12. It might be plausible that he made a mistake because he was distraught, but…research revealed he made at least 6 filings between 4/10 and 4/12, which suggests it was business as usual for him and he wasn’t at all distraught about grandpa.

          https://twitter.com/BoothSweet/status/1194617648765648897

      3. Honestly, part of me is surprised his grandfather actually died relatively close to the timeframe.

        1. Ditto. I had been assuming a purely hypothetical grandfather.

  2. If he had fessed up in the beginning he would have gotten a bench slap and maybe a bill for the opposing lawyers time but it would all be over. It would have been cheaper than the sanctions.

    How hard would it have been to write:

    “You honor I apologize to the court and opposing counsel for missing the hearing. My grandfather died only few days earlier and the emotional stress on me, my mother and family combined with the necessary preparations for his funeral caused me to simply forget. I should have informed the court and opposing counsel. I deeply regret the oversight.

    Please accept this heartfelt apology”

    Unfortunately I don’t belive that was the reason he missed the hearing.

  3. If he had simply said the grandfather had passed away shortly before the hearing rather than the morning of the hearing, this might have been an acceptable excuse. And even afterwards, if he had simply corrected it, the real situation might be close enough to what he had said that he probably wouldn’t have been sanctioned, certainly not as severely as he eventually was.

  4. At least he hasn’t played the antisemitism card…yet

  5. Leonard French has been covering all things Liebowitz in recent months and made the trip up to White Plains for the hearing. His vlog (after the end of the hearing) is here:

    https://www.youtube.com/watch?v=XWVVB0ikHMA

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How Old Was the Youngest Congressman?

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Alexandria Ocasio-Cortez became the youngest woman ever elected to the House of Representatives, at age 29. How old was the youngest man ever elected to the House of Representatives, when he was elected? Recall that the constitutional minimum is 25 ("No Person shall be a Representative who shall not have attained to the Age of twenty five Years ….").

Free Speech

Court Strikes Down Kentucky's Rejection of IM GOD Vanity Plate

Vanity plates are private speech in a nonpublic forum, the court holds; restrictions on such speech must be viewpoint-neutral and reasonable.

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Kentucky allows nonprofit groups to arrange for license plate designs, subject to some conditions:

(c) The group, or the group's lettering, logo, image, or message to be placed on the license plate, if created, shall not discriminate against any race, color, religion, sex, or national origin, and shall not be construed, as determined by the cabinet, as an attempt to victimize or intimidate any person due to the person's race, color, religion, sex, or national origin;

(d) The group shall not be a political party and shall not have been created primarily to promote a specific political belief;

(e) The group shall not have as its primary purpose the promotion of any specific faith, religion, or antireligion.

(f) The name of the group shall not be the name of a special product or brand name, and shall not be construed, as determined by the cabinet, as promoting a product or brand name;  and

(g) The group's lettering, logo, image, or message to be placed on the license plate, if created, shall not be obscene, as determined by the cabinet.

It also lets individuals set up their own vanity plates—the combinations of letters and numbers that identifies the car, not the overall plate design—but requires them "to comply with the conditions" set forth for the plate designs. Bennie Hart asked for a license plate that said IM GOD, but the request was denied "based on its reference to religion."

Unconstitutional, said Judge Gregory F. Van Tatenhove yesterday in Hart v. Thomas (E.D. Ky.).

[1.] Vanity plate contents are private speech, not government speech. Though Walker v. Sons of Confederate Veterans held that license plate designs are government speech, and the government can generally pick and choose which ones are allowed, vanity plates convey the owner's own views. In this, the court rejected a recent contrary Indiana Supreme Court decision, and followed instead the reasoning in a recent Maryland high court decision.

[2.] The vanity plate program is a nonpublic forum, so the government has some power to restrict speech there—but only in a viewpoint-based and reasonable way. And

Based on the facts of this case, § 186.174(1) is unreasonable as applied to Mr. Hart. The Transportation Cabinet argues that a statute banning religious reference is reasonable because it is necessary to support its legitimate government interest in "promot[ing] highway safety" because "potentially controversial messages … could lead to confrontation or distraction on its highways." The Sixth Circuit has stated that avoidance of controversy is a valid ground for restricting speech in a nonpublic forum, because a nonpublic forum is not dedicated to general debate or the free exchange of ideas. See United Food & Commer. Workers Union, Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 356 (6th Cir. 1998) (collecting cases). However, the Transportation Cabinet has been so inconsistent in its application of § 186.174 that it has ceased to be "consistent with [Kentucky's] legitimate government interest" in any way.

If the Transportation Cabinet genuinely wants to avoid controversy on Kentucky's highways by preventing "promotion of any specific faith, religion, or anti-religion" from appearing on vanity plates, then it should have denied "IM4GOD", "ASKGOD", GR8GOD", "LUVGOD". But it did not. Instead, the Transportation Cabinet has approved multipl[e] vanity plates featuring the word "god". This suggests that the law as applied to Mr. Hart is neither reasonable nor viewpoint neutral.

Seems right to me.

[3.] Given Matal v. Tam (the Slants case), I think that the exclusion of messages that "discriminate against any race, color, religion, sex, or national origin" (if understood as banning messages that support such discrimination) and messages that "attempt to victimize or intimidate any person due to the person's race, color, religion, sex, or national origin" would be unconstitutionally viewpoint-based. (A ban on speech that conveys true threats against people would be constitutional, but such threats are hard to communicate in six letters or numbers, especially if the threat specifically targets a certain group; and in any event, given R.A.V. v. City of St. Paul, even restrictions on true threats are unconstitutional if they discriminate against bigoted viewpoints.)

Likewise, given Rosenberger v. Rector and Matal, the exclusion of material that is primarily meant to "promot[e] … any specific faith, religion, or antireligion" would be unconstitutionally viewpoint-based even if it had been evenhandedly applied. But the court had no occasion to deal with the restrictions on "discriminatory," "victimizing," or "intimidating" messages, and it declined to consider a facial challenge to the restriction on religion-related messages.

Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

Justice Kagan asked which provision of the INA was violated by DACA

The answer, which the Solicitor General alluded to in his brief, turns on the relationship between the major question doctrine and the nondelegation doctrine

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During oral argument in the DACA case, very little time was spent on whether the policy itself was lawful. Almost all of the questions from the bench concerned whether the cancellation memo was reviewable, whether Secretary Duke adequately considered reliance interests, and whether Secretary Nielsen's provided an independent basis to cancel DACA.

There was only one significant colloquy between Justice Kagan and SG Francisco about the legality of the policy. Here it is, slightly truncated for readability:

GENERAL FRANCISCO: And my final and critical point is that there's no limiting principle. The theory on which DACA rests effectively allows the government to create a shadow INA for any category of aliens that it chooses to make low-priority targets, a shadow second-tier INA. And you, at the very least, need to locate something in the INA that confers that kind of broad and unfettered discretion. And there is simply nothing there. But, again—…

JUSTICE KAGAN: You know, the INA does give quite a lot of discretion to administrative officers, as you yourself admit and have argued on previous occasions and, indeed, in part here. … are you saying that DACA was --violated any particular provision of the INA? What are you saying it violated? … -because there's a big delegation, right, that says you get to make national policy. So what did DACA violate? …

GENERAL FRANCISCO: But, secondly, we're not saying that there's a specific provision that it conflicts with. But what we are saying is that when you adopt this kind of broad and historically unprecedented program, you need to at least locate the authority to do so somewhere in the INA. …

JUSTICE KAGAN: --you know, they located the authority in the INA's grant of broad discretion over national immigration enforcement policy.

GENERAL FRANCISCO: Your Honor, I think that the most that does is it gives you the authority to set policies and priorities, but there's a big leap between that and saying that you can affirmatively facilitate violations of the INA by hundreds of thousands of individuals to whom Congress has repeatedly declined a pathway to lawful status.

I found Francisco's answer somewhat unsatisfying, but predictable. (I regret that the Court denied Texas's motion to argue as amicus curiae; it could have presented a much more forceful attack on DACA, as it did before the 5th Circuit with respect to DAPA). The federal government has always been cagey about precisely what the legal and constitutional defects were in DACA–for an obvious reason. The SG is usually not in the position to argue that federal law limits the executive's power. Here, of course the Trump Administration has taken exactly that position. What then, is the answer to Justice Kagan's question? Which provision of the INA does DACA violate?

Generally, when a party argues that some executive policy is illegal, she would contend that the policy violates a specific statute. That is, the statute authorizes X, and the government does something other than X. But the SG's arguments about DACA's illegality are different: if the statute in fact authorizes X, then the statute unconstitutionally delegates legislative power to the executive branch. To avoid reaching the conclusion, the court should presume that Congress did not intend to delegate to the agency the power to resolve such a "major question." Here, the major question did not consider forbearance of removal; rather it concerns bestowing benefits including work authorization on 1 million+ aliens. (Texas never challenged the prioritization aspect of DAPA and DACA.) As a result, the Court should find the action was ultra vires–that is, beyond the scope of delegated authority. In short, Kagan questioned the government about an argument it never made.

SG Francisco's answer comes as close as possible as the SG can get to articulating the nondelegation doctrine.

Later in the argument, Ted Olson seemed perplexed at what the "constitutional defects" were in DACA:

OLSON: The Attorney General specifically said that DACA was illegal and unconstitutional. I don't know where the unconstitutional came from because it didn't come from the Fifth Circuit.

The answer to Olson's question, which Francisco alluded to during oral argument, was spelled out in the SG's reply brief. I flagged it here:

Respondents contend (N.Y. Br. 31-42) that DHS offered an inadequate explanation for its legal analysis. But the APA requires only that "the agency's path may reasonably be discerned." State Farm, 463 U.S. at 43 (citation omitted). Both memoranda reflect DHS's conclusion that the DACA policy exceeded the agency's "statutory authority." Regents Pet. App. 116a, 123a. That conclusion does not depend on whether DACA prevented DHS officials from exercising any discretion. See pp. 19-20, supra. And neither Secretary "place[d] any significant weight" on Attorney General Sessions' statement that DACA was unconstitutional, FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 804 n.23 (1978)—which, in any event, simply underscored his strongly held view that DACA was based on a statutorily unauthorized exercise of Executive power.

Regardless of whether the Secretaries placed any weight on that determination, by statute, they were bound by the AG's legal conclusions. (I suspect the DHS lawyers requested this sort of hedge because the agencies routinely rely on very broad–and in my estimation dubious–delegations of authority.) This rationale provides enough basis to support the cancellation of DACA.

The Cato Institute's amicus brief (which I co-authored) carefully explains the relationship between DACA, the INA, the nondelegation doctrine, and the major question doctrine. I maintain that this argument is the only viable path by which the Court can find that DACA is in fact illegal, and uphold the Attorney General's legal determination. Here is the key excerpt (pp. 18-19):

First, consider the regulation that authorizes the secretary to grant DACA recipients with work authorization, with which we can presume the attorney general was familiar.6 8 C.F.R. 274a.12(c)(14) provides a crystalline illustration of the elephant-in-mousehole framework. In 1987, the Immigration and Naturalization Service denied a petition for rulemaking to re-strict the issuance of work authorization to certain aliens. See Dep't of Justice, Immig. & Naturalization, Employment Authorization; Classes of Aliens Eligible, 52 Fed. Reg. 46,092 (Dec. 4, 1987). The government justified the denial, in part, because the number of such work authorizations would be "quite small"—so small, that the number was "not worth recording statistically." Id. at 46,092-93. Moreover, such authorizations would "normally [be] of very limited duration," and would be very rare. Id. at 46,092.

DACA operates in a very different fashion. The policy could provide roughly 1.5 million aliens with work authorization, and those authorizations could be renewed for years to come.7 This elephantine-sized grant of work authorizations—limited in neither size and "with no established end-date"—cannot conceivably be jammed into a not-statistically-significant mousehole. In every sense, this provision of benefits relies on a reading of federal immigration law that amounts to "an unconstitutional exercise of authority by the Executive Branch"—that is, the exercise of legislative powers. The attorney general's conclusion is consistent with the Court's admonition in Brown & Williamson: "Congress could not have intended to delegate a deci-sion of such economic and political significance"—the ability to provide work authorization to 1.5 million aliens—"in so cryptic a fashion."8

This argument does not in any way rely on policy rationales. If DACA, no amount of reliance interests can justify its continued enforcement.

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  1. “If DACA, no amount of reliance interests can justify its continued enforcement.”

    I think there may be a few words missing from that last sentence.

    So, the argument isn’t, “Statutory law forbids us to do this.”, it’s “Statutory law doesn’t authorize us to do this.” Not terribly confusing, though it is an unusual position for somebody in the executive branch to be taking.

    It shouldn’t be an unusual position, though…

  2. I read Francisco as all but abandoning the argument that the original DACA policy was illegal, focusing his argument on why the Supreme Court could find in the Administration’s favor without ever answering that question.

    And I also read Justice Kagan as being open to that argument. It’s all discretion. DACA was within prosecutorial discretion, and its rescission is also within that discretion.

    As you noted in an earlier comment, If the court delays issuing its decision until the end of the term, and lower courts also wait until towards the end of their timeframes to do things, the injunction likely wouldn’t get implemented get implemented until close to the end of Trump’s first term. If a Democrat gets elected, he or she could simply reinstate the policy.

    The court, if it uses this as its basis, could easily uphold the recession, decline to decide the legality of DACA as unnecessary to its decision, and yet hint in dicta that the justices suspect DACA was/is legal as within the same broad prosecutorial decision that makes the recision also legal.

    1. Hard to see how one might read it a different way.

      Though I do understand how one might want their brief to be relevant.

    2. The original argument that DACA was just about prosecutorial discretion doesn’t work. It bleeds into too many other things; DACA recipients aren’t just living here in a vacuum. They want green cards, purchase land, apply for citizenship, join the military, etc.

      1. The Court doesn’t have to agree with you to dismiss the present action. They can just conclude that canceling DACA is non-reviewable. Simple.

  3. Also, I find it surprising that there’s been no post on the oral argument in Hernandez v. Mesa, another important alien-related case decided the same day, which got considerable Conspirator attention before the oral argument.

    1. Jeffrey Wall left a good law firm to argue that a border agent should be enabled to shoot and kill a brown child without cause or accountability.

      To most of the Conspirators, Mr. Wall is a hero, but they seem to understand that this should be a quiet heroism . . . at least while they are still attempting to fit into decent, mainstream society.

      1. Rev. Arthur T. Kirkland,

        Justices Stevens and Ginsburg said that the method used to conduct a termination procedure isn’t any business of the United States. Why should it matter here? After all, the whole point of Roe was that it’s perfectly OK to kill a brown child a few minutes from birth because the Bill of Rights lacks “prenatal application.” Indeed, it said that efforts to impose cause and accountability can unconstitutional and the role of the court is to defend against those who would impose cause and accountability on the free choice.

        Given that the Bill of Rights equally lacks “extraterritorial application,” what makes this any different? No “application”, no government intruding and imposing cause and accountability. Are you suddenly getting religion, sir?

        1. Decency sir? You would intrude on american’s freedom of choice because you think freedom indecent? You horrible, hateful fundamentalist if fanatic! Everybody knows that “decency” is nothing more than a code word for bigotry, hate, and laughably Paleolithic thinking. You told us that yourself, regularly, until only just now.

          I sincerely hope your newfound theocratic religious decency that you now seek to impose on others doesn’t lead you to violence.

    2. The events at issue in that case happened in 2010. No way to lay it at the feet of the evil orange man, nor to connect it to the evil orange man’s policy on immigration.

      1. True.

        I don’t get the failure to prosecute at the time.

  4. So the argument boils down to the classic question that children face – are we only allowed to do the things we are specficially told we can, or are we allowed to do anything we want unless specifically told otherwise?

    So does the INA allow the President to do anything he wants unless its specifically prohibited (a strange position for Kagan to take, given the long term implications), or does it only allow a President to do the things it speclifically authorizes?

    1. There may be some aspects of the original DACA EO that are more vulnerable to challenge than the prioritization, but I don’t know why it would be “a strange position” for Justice Kagan (or any other Justice) to agree that the President has more than no discretion in enforcing federal law.

      1. It sounds like she is arguing that the President can do what he wants unless the INA says otherwise. That would give the President enormous powers to do things that she might not like.

  5. Regardless of DACA’s legality, no one can argue in good faith that the APA prohibits Trump from ending it.

    1. The “in good faith” train left the station about 15 years ago with the last set of passengers…

      1. Yeah, after Roe v. Wade.

  6. In effect, Obama’s executive orders on immigration policy can only be overturned by acts of Congress. The court will keep delaying action on any of Trump’s executive orders that Dems don’t like until there is another Dem president. So much for the rule of law.

  7. Obama himself stated with great clarity, a number of times, why DACA would be illegal. I won’t even call it an argument, just a statement of Constitutional law. But eventually, he argued that he had to do it anyway as a “stopgap” because Congress “failed to act.” I doubt that even Obama imagined the courts would allow the “stopgap” to continue this long.

    Obama is far from unique in this sort of thing. Obama joined a long line of Presidents and others willing to blatantly trash the Constitution to do “the right thing” in their mind. It’s very classically Lincolnian.

    1. I thought he was a bit unusual, though, in saying something was unconstitutional before doing it. But I guess Lincoln went there, too.

      1. I’m not surprised, based on some of Obama’s other actions. For example, his declaration that he said when the Senate was in session.

        Obama knew Congressional law, but didn’t “believe” in it.

    2. DACA is not the Dream Act.

      It’s amazing how I keep correcting you and yet you keep forgetting.

      1. No it is not. The Dream Act died in Congress. DACA is Obama attempting to enact the dream act through executive action.

      2. DACA is not the Dream Act.

        It’s amazing how I keep correcting you and yet you keep forgetting.

        Wow. You dishonestly mischaracterizing someone else’s comments? I’m shocked…SHOCKED, I tell you!

        What Obama described as beyond his constitutional authority was not specifically the Dream Act. It was unilateral executive action that effectively altered immigration law. From his own mouth:

        “I am not king. I can’t do these things just by myself.” In March 2011, he said that with “respect to the notion that I can just suspend deportations through executive order, that’s just not the case.” In May 2011, he acknowledged that he couldn’t “just bypass Congress and change the (immigration) law myself. … That’s not how a democracy works.”

        1. He didn’t do any of those things in italics, so again I don’t see why you think this argument has legs.

        2. That’s Sarcastro’s basic go-to. Dishonestly mischaracterize FTW.

  8. DACA is discussed as if it were law. And that’s the problem – it is not law, it is arbitrary seat-of-the-pants leglislating by the executive. At SOME point the court has to decide that the executive is not the legislative branch, and does not have legislative powers. Anything else is sophistry.

    More importantly to me – it seems an indisputable fact that what one president CAN do, another can undo. By definition. So Trump should have ordered DACA ended, and then made his own policy, respecting legislative prerogatives. Sadly, he didn’t.

  9. There is nothing unsatisfying about the answer at all. Obama didn’t decide to prioritize enforcement towards one area or another. He decided to declare an entire class of people immune from enforcement of the law. If an executive is allowed to do that, then what law would have any meaning at all?

    Suppose I am a District Attorney in a state that does not have the Castle Doctrine. My side has tried to get it enacted for years and the state legislature has refused. By the logic of DACA, I could as a DA just degree that anyone accused of murder while defending their home will not be charged with a crime. I have effectively enacted the Castle Doctrine by systematically refusing to enforce the murder and assault laws against those who would be covered by it were it to be law.

    That is exactly analogous to what Obama did with DACA. He wanted a certain class of people to be granted legal status in the country despite the clear terms of the INA. He could not get the Congress to amend the INA. So, he accomplished that by just declaring the class immune from prosecution under the INA.

    If executives, be it the President or your local DA are allowed not just to pursue individual cases but declare entire classes of offenders immune from prosecution, then no law has any force without the agreement of whoever has been elected to enforce it.

  10. “ GENERAL FRANCISCO: And my final and critical point is that there’s no limiting principle.“

    When did it become common practice to address (or refer to) a solicitor general, attorney general, or postmaster general as “general”?

    He’s not a general! He’s a solicitor—a general solicitor. As in French, in these examples they just happen to place the adjective after the noun. Are we that stupid?

    1. I think we’ve been around this one before.

      IMO your complaint applies to military officers as well. A lieutenant general, for example, is not a “general” but a general lieutenant, though I must admit the Army disagrees.

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Today in Supreme Court History

Today in Supreme Court History: November 14, 1922

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11/14/1922: Pennsylvania Coal Co. v. Mahon argued.

The Solicitor General's Reply Brief Did Not "Reverse Position" on the Nielsen Memorandum

In the circuit courts, DOJ cited the Nielsen memorandum as providing an "independent" basis to rescind DACA

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The DACA litigation turns, in part, on two separate memoranda issued by two Homeland Security Secretaries: (1) a memorandum from Secretary Elaine Duke, and  (2) a memorandum from Secretary Kirstjen Nielsen. The latter document was created after Judge John Bates (DDC) asked the government to provide a further explanation for its decision.

In a recent post, Andy Pincus was surprised at how the Solicitor General characterized the interplay between these memos. (I am grateful to Andy's company and camaraderie as we waited on the cold and rainy bar line together early Tuesday morning.) He wrote:

These questions of accountability and procedural regularity are heightened by the quite surprising reply brief filed by the Solicitor General last week, which reverses position on the Nielsen memo, urging the Court to consider it a new agency action and to uphold DACA's termination based on the policy explanations offered by Secretary Nielsen.

I don't see a reversal at all. I checked the government's briefs in the lower courts, and found very similar arguments. Specifically, DOJ argued that the Nielsen Memorandum provided an "independent" policy justifications to rescind DACA. The Court may find those rationales unpersuasive, or conclude that the Nielsen memo is outside the administrative record, but the government preserved the argument. Here are some excerpts (with my emphasis added).

D.C. Circuit Reply Brief:"[A]s DHS did not need to use notice-and-comment rulemaking to rescind DACA, the Nielsen Memo could stand as an independent basis to rescind DACA even if the Duke Memo were somehow insufficient on its own." (at 22-23)

Second Circuit Reply Brief: "The Nielsen Memo briefly elaborates on the Duke Memo, which the district court already considered, and this Court can and should assess that further explanation itself.  Indeed, the Court may consider the Nielsen Memo on its own terms, including insofar as its reasoning goes beyond the Duke Memo, given that, as the district court recognized, rescinding DACA does not require notice-and-comment rulemaking." (at 3-4)

These briefs were consistent with how SG Francisco presented his argument before the Court. Indeed, he used the phrase "independent" several times:

GENERAL FRANCISCO: Sure. For a couple of reasons, Your Honor. First, because she sets forth separate and independent bases justifying the rescission: first, her belief that it's illegal; second, her belief that there are serious doubts about its illegality; and, third, her conclusion that, as a matter of enforcement policy, the Department of Homeland Security is against these kinds of broad-based non-enforcement decisions.

GENERAL FRANCISCO: –that's precisely what Secretary Nielsen's memo did. It did two things. First, it explained the basis for Secretary Nielsen –Secretary Duke's decision, but, secondly, it set forth her own independent judgment.

GENERAL FRANCISCO: I –I simply disagree with that. When she specifically says that she is setting forth separate, separate and independent grounds justifying the rescission, I don't think that there's any fair way to read that but by saying that she would have rescinded it based on any of the independent grounds, which brings me

The SG's reply brief did not "reverse position" on the Nielsen memorandum.

Steve Calabresi Responds and Updates His Arguments on Impeachment Hearings

Are the Procedures Fundamentally Unfair?

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Last week, my colleague Northwestern Professor Steve Calabresi published an op-ed raising issues about the procedural fairness of the impeachment hearings.  He met with strong attacks, including by my Volokh colleague, Professor David Post.

At the Daily Caller, Calabresi has now updated his original arguments on the issue:

Numerous critics have contacted me arguing that Sixth Amendment rights would apply to President Trump in a Senate trial, but not in a House proceeding.

But why were Presidents Nixon and Clinton given Sixth Amendment rights in their House impeachment proceedings which President Trump is being refused?

The House of Representatives may function only as a grand jury in impeachment proceedings, in which case House Democrats may have been violating Trump's Fifth Amendment Due Process Clause rights by leaking damaging information about him as the result of a secret investigation in which the charges have not been revealed. He has not been able to confront the witnesses against him, and he has not been able to call witnesses in his own defense.

I say the House of Representatives may function as a grand jury in cases of impeachment because in some respects the impeachment process is sui generis.

In both the Nixon and Clinton impeachment proceedings, the House gave presidents their Sixth Amendment rights. The House did not in those proceedings leak damaging information to the press obtained in a secret proceeding. Nixon and Clinton were informed of the charges against them, they were able to confront witnesses against them, and they were able to call witnesses in their own defense.

There is quite simply no question, at all, that impeachment cases in England were criminal law proceedings. They usually ended up with the House of Lords pronouncing the death penalty or life imprisonment as its sentence. Article III, section 2, paragraph 3 explicitly states: "The Trial of all Crimes, except in cases of Impeachment, shall be by jury." Sixth Amendment rights, in turn, attach "In all criminal proceedings" and Fifth Amendment Due Process Clause rights apply to grand jury proceedings in which it is illegal to secretly leak grand jury information to the press.

The framers of our Constitution limited the Senate's power to punish impeached officials to removal from office and disqualification from holding office in the future. That does not change the criminal nature of an impeachment case, which the Senate hears as a Court of Impeachment. Removal from office can only happen if the Senate finds that President Trump has committed "Treason, Bribery, or other high Crimes and Misdemeanors."

I haven't gone through the arguments pro and con with care, but the question whether these hearings are fundamentally unfair is different from the question whether full 5th and 6th amendment rights are legally required.

We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today.  Further, a presidential impeachment is important enough that the protections should be exemplary, not sub-normal.  One should also remember that grand juries are often criticized as being fundamentally unfair (e.g., "ham sandwich")–and with grand juries, proceedings are secret and leaking testimony is a crime.

Here having public hearings, while allowing only one side of the story and prohibiting the Republicans from calling their own witnesses, makes the hearings less like a trial or a grand jury and more like a show trial.

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  1. I think the main difference in the Nixon and Clinton cases is that the representatives conducting the impeachment were at least nominally serious people, trying to conduct a nominally serious proceeding. They wanted to at least appear to be doing their duty in some way.

    We have Adam Schiff and some others throwing a tantrum. It’s been on-and-off tantrums since the 2000 election. I think most people can’t even really remember when politicians and the news media sometimes acted like adults.

    1. Wait, what? You see Schiff as the one throwing a tantrum and the Republicans as being the sober, deliberate, adults in the room???

      Astounding. I guess we all see what we want (expect??) to see.

      1. Those aren’t mutually exclusive – Adam Schiff is the one with institutional power throwing a tantrum. The minority without that institutional power can also be throwing a fit.

        Of course, at the Senate, the roles will be reversed, but I don’t expect anyone to remember that.

        1. Shows how bad the House Judiciary chair is, they let a character like Schiff be the lead.

          Trump remains blessed with his enemies.

          1. Schiff has never been the House Judiciary Chairman. He was briefly the chair on a task force on judicial impeachment years ago.

            What’s the specific criticism of Schiff?

            1. I didn’t say he was, I said that because Jerry Nadler is so bad, they had to turn to Schiff.

      2. There aren’t any adults in that room.

      3. re: “I guess we all see what we want (expect??) to see.”

        Given your own apparent (in)ability to read the actual comment that Ben_ wrote, that is self-evidently true.

      4. I never said any current politicians were “sober, deliberate, adults”. There’s not much market for that in the US any more. TV comedians
        and obvious, transparent liars are US thought leaders.

    2. You must be unfamiliar with Ken Starr.

      1. What we learned with Ken Starr was the wisdom of the Founding Fathers in not letting the powerful filch at will through an opponent’s papers looking for anything to hit them with.

        Yet it happened anyway. The Republicans were ready to get rid of him for what they would later decry as a minor, manufactured crime — a process crime.

        Now the shoe is on the other foot and everyone’s flip flopped like good little situational ethicists, touting principles they downplayed and downplaying principles they screamed from the mountain tops.

        It was wrong then and it is wrong now and it was wrong when Trump said, “Lock her up!”

        No one will learn. And the downstream blowback the next time in 20 years or more will be even worse.

        1. Hillary Clinton clearly should be locked up.

        2. If Clinton had withheld $400 million in appropriated funds to extort a bj from the leader of a foreign government, I’d agree with you.

      2. Ken Starr impeached no one.

    3. I’ve read the House impeachment procedure resolutions for Trump, Clinton and Nixon. When it comes to calling witnesses or subpoenaing witness they come down to the same point. The minority party cannot call or subpoena witnesses against the wishes of the majority party. Even the GOP are saying that.

      In a process where the majority party and the minority party are operating in the same universe, there will be no problem with the witnesses the minority wants. The parties were in the same universe with Clinton and Nixon. But the resolution allowed the majority the final say.

      Here the majority says the story is what happened in Ukraine and Washington DC in 2019. The minority story is a mish mash of conspiracy theories and any thing else they can find. Under these circumstances, the majority will follow the rule of every committee of the House and Senate and every previous impeachment.

      To the extent that the GOP want witnesses that are relevant to the impeachment, there should be no problem having them appear.

      The procedure is as fair as it can be when one party is in the real universe and the other is not.

      Everyone should realize that the fairness of the GOP if they had been in charge of the House now would be zero hearings on this. That’s fairness for the GOP. That’s the way the US Congress works. Elections have consequences. Get over it.

      1. And yet, last time when the GOP did this, the procedures were called very fair

      2. To the extent that the GOP want witnesses that are relevant to the impeachment, there should be no problem having them appear.

        You’re under the assumption that the Democrats will let the Republicans call witnesses as long as those witnesses are “relevant” (as defined by the Democrats).

        Giving the majority the power to summarily reject any witnesses from the minority party is in no way “fair.”

        1. Who are the Republicans attempting to call, who are not being called, but whose testimony is relevant, in your view?

          1. Isn’t it relevant if there was real corruption with Burisma and Hunter to investigate it?

            1. We have lots of investigatory folks back here.

              Using foreign aid to strong arm another country into announcing they’ve opened an investigation into your political opponent isn’t absolved by the opponent having done something wrong.

            2. Nope. The question answers itself. Otherwise, the sentence would have been that “the investigations are relevant because a, b, c…” But there is nothing beyond the unanswered question, and the mere assertion that they are relevant.

            3. Sam Gompers : “Isn’t it relevant if there was real corruption with Burisma and Hunter to investigate it?”

              (1) Is it relevant Trump is the last man on earth who would show the slightest concern over the issue of corruption? If his defenders insist we must know his mental state to judge his actions, then why isn’t it germane that Donald Trump – Crusader Against Corruption is stone-cold laugh-out-loud ludicrous.

              (2) Is it relevant that the two faux-investigations Trump demanded in the transcript were obvious frauds? Both CrowdStrike (with the hidden server) and Joe-Pressured-Ukraine-Over-Hunter are easily discredited nonsense. Should that matter?

              (3) Is it relevant that these “investigations” were to be managed by Trump’s sleazy lawyer and two low-grade crooks? That the DOJ washed it’s hands of them with blazing speed right after the transcript release?

              (4) Is it relevant that these “investigation” had to be publicly announced, even to the extent Sondland demanded President Zelensky sign a paper committing to a public show?

              That said, I’ll give my non-lawyer’s understanding of the law, derived from many a potboiler movie or book: I think Trump should be permitted to call witnesses attesting to this alleged “corruption”, but only after laying the foundation with testimony on the care & professionalism of his anti-Ukrainian-corruption campaign. A few days on the stand by Barr, Giuliani, Lev Parnas and Igor Fruman should do’t. (and what a spectacle that would be…)

      3. “To the extent that the GOP want witnesses that are relevant to the impeachment, there should be no problem having them appear.”

        It’s a serious problem because the Democratic interpretation of “relevant”, functionally, has been “favorable to the goal of impeaching”. If a witness or question doesn’t advance that goal, they’re treating it as irrelevant.

        1. Who would be “[un]favorable to the goal of impeaching” in your view? President Trump? Rudy Guiliani? Bolton?

          1. “Who would be “[un]favorable to the goal of impeaching” in your view? President Trump? Rudy Guiliani? Bolton?”

            Hunter Biden

        2. No; it’s “relevant to the potential misconduct.”

          Whether Schiff met with the whistleblower has exactly 100% of zilch to do with whether Trump committed impeachable conduct.

          What Hunter Biden did while on the board of Burisma has nothing to do with whether Trump committed impeachable conduct. Even if Hunter Biden did break Ukrainian law, that doesn’t justify Trump withholding military aid or other assistance until the Ukrainian president announced on tv that he was investigating him.

        3. Do you seriously think that the Republicans are eager for Giuliani and Mulvaney to testify, and that the Democrats are blocking that out of fear they won’t advance the case?

          That’s delusional. Utterly delusional.

        4. Still waiting for an articulated legal reason why these witnesses are relevant.

      4. “The minority story is a mish mash of conspiracy theories and any thing else they can find. ”

        The corruption of Barisma and the Biden’s is clearly germaine to this issue, yet the Democrats are blocking any witnesses regarding that.

        1. Why would corruption of Burisma be germane to this issue?

        2. Still waiting for the sentence from anybody that the Biden’s conduct is “clearly germane, because…” When I read an opposing brief, I always look for “clearly” because it tends to signify my opponent can muster neither reasoning nor authority for the point.

  2. Testimony, inscrutable witnesses, evidence. These things weigh nothing against the heft of the unfairness of it all.

    Seriously though, you think the Clinton impeachment was “fair”?

    1. In this case the testimony is they heard it from a friend who, heard it from a friend, who heard it from an aide that Trump was messing around. Why, exactly, is the aide not the one testifying?

      1. Because he was told not to by the White House?

        The people with first-hand knowledge appear to be Sondland, Mulvaney, Bolton and Giuliani. The latter three have refused to testify.

        1. Sondland does not have any first hand knowledge.

        2. Sondland’s testimony to the committee was that not only did he not have first-hand knowledge of why the aid was held up, he didn’t even have second-hand information. This statement about the cause of the hold-up to some Ukraine officials was based on pure speculation.

          1. In his written revision to his testimony, Sondland said:

            I told Mr. Morrison in early September 2019 that the resumption of U.S. aid to Ukraine had become tied a to a public statement issued by Ukraine agreeing to investigate Burisma,” “I told Mr. Morrison that I had conveyed this message to [Ukrainian presidential aide] Mr. Yermak on Sept. 1, 2019, in connection with Vice President Pence’s visit to Warsaw and a meeting with [Ukranian President Volodymyr] Zelensky . . . I said to him in early September that resumption of U.S. aid to Ukraine might be conditioned on a public statement reopening the Burisma investigation

          2. Apparently Sondland spoke directly with Trump about the matter.

            He also told Taylor explicitly that the aid was being held up pending the announcement of an investigation. Do you think he was acting on his own, or was so instructed by someone?

      2. He is now scheduled to give a deposition and will shortly go for a public hearing.

        This was new information, that an inquiry is supposed to uncover and give more avenues for fact finding.

    2. The Clinton procedures were fair. I skimmed the Clinton Articles of Impeachment a couple of days ago. He was charged with 2 counts of perjury, 1 count of (in effect) suborning perjury, and a procedural trivial makeweight count. Further, the House report showed that perjury was sufficient grounds for impeachment & removal in several judicial impeachments in the 1980s. Clinton was allowed to call witnesses and didn’t really contest the perjury counts. About half the Senate voted him guilty on two charges, but that was far from enough. In effect, the Senate concluded that perjury in a civil rights suit and encouraging people to lie was not serious enough to be an impeachable offense.

      1. Guess who wrote the rules for impeachment? They are almost royalty taken from the procedures that Republicans put in place when they anticipated their witch hunt of President Hillary Clinton. They wrote the rules they should live with them. Elections have consequences.

  3. As far as constitutional requirements, impeachment is solely up to the house. The rules are whatever the majority of the house says.

    1. Congress has the POWER to impeach for whatever reasons it wants to, but it breaches its DUTY to uphold the constitution if it does so for reasons other than a high crime or misdemeanor.

      1. Guess who makes that determination? The power is solely vested in the House.

        Using the power of the presidency for personal political gain is pretty much the definition of high crime anyway.

        1. Perhaps Gerald Ford went too far when he said that “an impeachable offense is whatever a majority of the House of Representatives considers it to be at a given moment in history.” But the definition is vague enough that each member has to decide what it means to him or her — as long as the allegations involve actual, non-trivial misconduct and not merely policy disagreements.

        2. Every president ever has used their power exclusively for the purpose of personal political gain, in that they effect policies and dole out favors they believe will aid their reelection, or the election of their political allies, or the fortunes of their friends or future business associates. If that’s definitionally a “high crime”, we’ll have quite a backlog to work through. Funny how the status quo is suddenly a problem when the bad orange man is holding office, but was fine when contributions were flowing into the Clinton foundation….. hmmmm.

          1. Because orange man good.

          2. How then to explain Lyndon “We’ve Lost the South for Generation” Johnson? Do presidents generally have mixed motives when they exercise their power? Sure. But claiming that self-interest always trumps public interest whenever the two conflict is cynical AF and unsupported by history.

        3. Guess who makes that determination? The power is solely vested in the House.

          The power to impeach the President is vested in the House, but the power to judge the appropriateness of that action is vested in the voters.

  4. impeachment cases in England were criminal law proceedings. They usually ended up with the House of Lords pronouncing the death penalty or life imprisonment as its sentence.

    Which completely refutes the argument.

    Here there is no question of any penalty beyond removal from office., and possibly disqualification from holding office in the future. No death penalty, no imprisonment.

    And tell us, Lindgren, in what criminal proceedings does the putative defendant have the power to prevent important witnesses from testifying?

    1. In most jurisdictions, any proceeding in which the State wants the defendants spouse to testify. Or priest (though that’s more malleable).

      Come on, that wasn’t even hard, and the House can always hold people in contempt who refuse to testify and send their Master at Arms to fetch them.

      But our House has become feckless, just like the Senate did a decade ago when they stopped the filibuster from actually meaning anything. If a Senator believes firmly enough to stand up and speak continuously then maybe we should seriously address their concerns, but merely claiming that you will filibuster something? That defeats the point of it being a self sacrifice and robs it of meaning.

      1. Spouse and priest? OK.

        Let’s not force Melania, or whoever is the closest to being Trump’s priest, testify.

        But Mulvaney, Giuliani, McGahn, Bolton are neither spouse nor priest, and whether they can even be held in contempt seems to be an open question.

        I’m confident Blackman will be issuing an amicus brief in their favor soon.

        1. Climbers gonna climb. Clingers gonna cling. Climbing clingers . . .

      2. The marital privilege not to testify belongs to the witness spouse, not the defendant spouse.

        1. Two types of spousal privilege.

          Communications privilege made by a spouse to the other are protected and the privilege can be asserted by either.

          Testimonial depends on the jurisdiction. I think the majority gives the defendant spouse the privilege.

          1. Two types of spousal privilege.

            Only one of which can be used to “prevent [a] witness[] from testifying” (as opposed to precluding aspects of their testimony).

            I think the majority gives the defendant spouse the privilege.

            That’s certainly not the majority rule, and I don’t think I’ve ever heard of any jurisdiction that assigns the privilege that way. If you have examples, I’d be fascinated to see them.

  5. “We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today.”

    That’s cute. Suddenly two prior instances of modern practice establish constitutional norms and traditions that ought to be followed by subsequent officeholders. This is rich coming from an ideology that claims the original public meaning of the Constitution triumphs over past legal interpretations. What happened to originalism and the use of historical evidence as the method of interpreting constitutional provisions? All of these “new” legal arguments about the unfairness of the process look a lot like living constitutionalism; an attempt to update the language of the document to confront contemporary needs. Today the need is defending a fellow partisan (especially when that partisan holds the key to reshaping the federal courts) and constitutional clauses must be given novel interpretations to meet that need.

    1. Are there any serious people who argue the House can’t do these? Not even Calabresi is arguing they can’t, just that they shouldn’t.

      An argument about norms is just that – it’s a social equilibrium that was reached for good reason and you should be wary of changing it, not that you can’t change it. That would be like someone arguing that because the filibuster was a norm that means it’s Constitutionally mandated, and I’ve never even heard that argument, merely that it’s a good idea (and that Harry Reid would regret ditching it).

      1. Uh, no, dude’s arguing the Constitution applies. That’s not a shouldn’t argument, it’s a can’t argument.

        That’s why he’s supremely out there.

        Arguing norms via ‘established tradition’ of two disparate incidents is not a very strong norms argument. Which makes carping that Congress is failing it’s duty more sophistry then righteousness.

        1. “the question whether these hearings are fundamentally unfair is different from the question whether full 5th and 6th amendment rights are legally required. We have an established tradition in the Clinton and Nixon impeachment proceedings for how to conduct fair hearings of this type, a tradition that is being ignored today. Further, a presidential impeachment is important enough that the protections should be exemplary, not sub-normal. “

          1. Yeah, I’m talking about Clabrisi, as is the guy I’m replying to.

        2. dude’s arguing the Constitution applies

          Of course the Constitution applies. The Constitution in fact governs the process of impeachment. The House didn’t just make this up.

          I’d recommend at least a cursory course in Constitutional Law.

          1. And you know what I meant, making your pedantry just an excuse for low-grade insults.

  6. One critical difference here is that members of the House are not limited to considering evidence and testimony that comes out in the House hearings when voting on articles of impeachment. Because of this, the President has a significant ability to make his case to the members wholly apart from the hearing.

    In addition, in determining whether a process is fundamentally fair, we have to consider what the point of the additional process is. The Senate, which has full power to try impeachments (and whose judgment on how to do so constitutes an unreviewable political question), can reject the articles in short order if it believes they are unfounded. On the flipside, drawn-out impeachment hearings on top of a full Senate trial risk leaving a president who has committed offenses warranting removal in office for too long. (Not opining on this president in particular.) Process has its costs, and to me, some increased risk of an erroneous impeachment (which is largely correctable by a Senate acquittal) is an acceptable risk when compared to the risk of excessive delay.

  7. If you are giving a legal argument, shouldn’t you research the law?

    Please read the 1992 Judge Walter Nixon decision. That was a case where the trial in the Senate was unfair if due process applied. The evidence was heard by a committee of the Senate which made a report to the Senate and then the Senate voted. The Supreme Court did what courts do — they first looked at jurisdiction. They said that they had no jurisdiction over the procedure of the Senate and dismissed the case. This would equally apply to the House.

    If there were any merit it the Calabersi argument then the President’s lawyers would have been in court weeks ago.

    The President is getting a process that is much better than the Starr chamber or the Watergate committee. It has come out that in addition, the witnesses were prepped in secret by the majority. There is not even that complaint from the GOP.

    1. I think Prof. Calabresi is off base here, but I’m not sure how relevant this point is. The fact that a court can’t review the congressional impeachment proceedings for constitutional violations doesn’t mean that the constitution doesn’t impose restrictions.

  8. So Calebresi is continuing his legal self-immolation by trying to argue impeachment in the House is (not is like but IS) a criminal trial.

    This gives Prof. Lindgren a chance to come out and argue that it’s fundamentally unfair that the GOP can’t call witnesses based on the precedent of two disparate examples where precedent has no bearing.

    He’s condemning the rules the GOP set up during Benghazi as fundamentally unfair, but that’s neither here nor there at the moment. Because it’s time for procedural objections, even outlandish ones, because the substance is not looking great.

    1. I didn’t recall the Benghazi hearings were impeachment hearings, thanks for refreshing my memory with alternative facts.

      1. And yet they set the rules for where we are now.

        1. I’m not sure I follow.

          The Benghazi hearings weren’t impeachment proceedings, so if the constitution actually requires extra procedural protections for impeachment proceedings, the fact that those protections weren’t available at the Benghazi hearings doesn’t seem to mean a whole lot.

          Again, I’m dubious about Prof. Calabresi’s claim that the constitution does in fact require these protections, but I’m not sure this argument does much to refute it.

          1. Why are impeachment hearings more due-processee than any other investigation of a government official?

            The GOP made some rules that they liked. Now they should abide by them.

    2. “because the substance is not looking great”

      Only Trump opponents care. He ain’t getting removed over a country most Americans couldn’t find on a map if they were given a map only showing Ukraine.

      1. Your nihilism gets increasingly unbecoming, as you admit Trump’s corruption but just can’t be moved to care so long as you think he’ll get away with it.

        1. I admit nothing. My point stands, there are no GOP votes to convict over something involving an obscure country like Ukraine. Its not part of NATO, we have no treaty with them.

          Even if true, its not a “high crime or misdemeanor”. Your mileage may vary.

          1. Actually Ukraine is not that relevant. The question is whether the president abused his power by soliciting a personal benefit at the cost of US security thus violating the oath he took when he was sworn in and pledged to defend the Constitution against all enemies foreign and domestic.

          2. Actually, I believe we DO have a treaty with them. Ironically, it’s the treaty that made Trump’s request perfectly legitimate.

            1. Brett, you’re not a lawyer, and you should stop pretending to be one. You’re terrible at it. No, the MLAT did not make Trump’s request perfectly legitimate. It actually had no applicability at all.

              The MLAT — as do ones we have with other countries — allows country A to ask country B for help with evidence gathering in support of an investigation that country A is conducting. It does not relate to country A asking country B to start investigating¹ one of country A’s citizens. And it specifies a procedure for asking for such assistance — the Attorney General must send a written request to his counterpart in the other country — that the careful reader will realize does not include the involvement of the president’s personal lawyer.

              ¹Though, as always, I’m being charitable, since the evidence is that Trump didn’t want an investigation at all; just an announcement that Biden was being investigated.

  9. It’s moot anyway. It’s clear after today’s opening hearing with their star witness Ambassador Taylor that they don’t have anything close to the goods on Trump.

    They might barely get a majority of the Democratic caucus to impeach, but they won’t get a majority of the House.

    I predict Pelosi and Hoyer as both no votes on impeachment.

    1. You mean the part where Taylor said there was a quid pro quo for corrupt reasons?

      Were you too busy to follow along yesterday? I get the talking point on the right for months has been that the Dems have nothing and are desperate, but it’s getting increasingly ridiculous to anyone who is actually paying attention to what’s happening.

      At least you didn’t use the ‘it’s too boring to matter’ play.

      1. Yes, the part where Amb. Taylor stated he never talked to the POTUS, and his thoughts on quid pro quo were total speculation. There is nothing clear and unequivocal here. It looks and sounds like bureaucratic sour grapes. The American people won’t go for that.

        In fact, I’d be willing to wager the majority of people listen/read/hear about the testimony and think to themselves, “These state department assholes are arrogant AF. They need to be fired. The POTUS decides foreign policy, period”

        1. Ah. So second hand knowledge isn’t good enough, but all first hand knowledge is privileged.

          Come on, man.

          Your wager is in the ‘no one I know voted for Nixon’ level of nigh-solipsism.

      2. They could as easily have had Cher get up there and say that. She at least has met Trump.

      3. “You mean the part where Taylor said there was a quid pro quo for corrupt reasons?”

        Where did Taylor get his insights into those reasons? From a New York Times article after the fact.

        Good grief.

        1. Indeed, I found that kind of shocking: They had the guy testifying, essentially, as to what he’d read in a newspaper.

          That sort of thing makes hearsay look solid.

          1. The NYT article was quoting what Trump said, so…

      4. The part where Taylor said he has never talked to Trump.

    2. They might barely get a majority of the Democratic caucus to impeach, but they won’t get a majority of the House.

      I’ll take that bet.

      1. I predict Pelosi and Hoyer as both no votes on impeachment.

        I’ll take those also. Give you 6-5.

    3. Nah, they’ll get a majority of the House. The Democrats have a terrifying level of party cohesion on anything they consider important. Have had it for as long as I can remember. I’ve seen them get votes out of members that everybody knew were political suicide, but they got them anyway.

      1. How many Republicans voted to advance the investigation the other day? Even a bigoted birther must recognize that the ‘Democrats are bad because they stick together’ argument is lame in this context.

        Or, considering the conclusions most right-wingers have reached about our world and society, maybe not.

        Carry on, clingers. So far and so long as better Americans permit, that is.

      2. Pelosi is smart enough to think about one comes next after they vote for impeachment. Here is the nightmare scenario for her of what a Senate trial could look like:
        1) The Senate votes rules that disallow any hearsay evidence. That disallows just about every prosecution witness except perhaps Sondland.
        2) They allow Trump to put on a full throated defense on why he would think there should be an investigation of Biden firing the prosecutor and reopening am investigation into Burisma’s payments to Hunter.

        And don’t think Lindsey Gramm and McConnell wouldn’t threaten to do exactly that one they are in charge. The Democrats have got to realize that as much as they and Schiff are in charge now, Gramm and the GOP can take charge in the Senate.

        1. Kazinski : “The Senate votes rules that disallow any hearsay evidence”

          We’re listening to so much hearsay evidence because the White House is blocking testimony from Rudy Giuliani, Mike Esper, Rick Perry, Mike Pompeo, Mick Mulvaney, John Bolton, Charles Kupperman, John A. Eisenberg, Pat Cipollone, and a score more critical witnesses.

          What happens when the “judge” issuing those subpoenas is Chief Justice Roberts, presiding over a Senate trial? Will stonewalling get more complicated then? I admit not knowing….

          Kazinski : “They allow Trump to put on a full-throated defense on why he would think there should be an investigation of Biden firing the prosecutor and reopening am investigation into Burisma’s payments to Hunter”

          Biden pressured Ukraine on orders of the President, following the directive of the State Department, for policy aims of the United States government, at the request of the European Union, in conjunction with similar pressure from the World Bank, and along with parallel action by the IMF and European Bank for Reconstruction and Development. Biden’s pressure was applauded by every reform group in Ukraine, who then cheered when it proved successful. No “investigation” of Biden’s pressure over Shokin will ever find any fault, because that’s contradicted by every single fact.

          Also : Investigating what about Burisma’s payments to Hunter? At the exact same time the company rented a “Biden” for their corporate board letterhead, they also purchased an ex-Polish president, Aleksander Kwaśniewski. If I had to guess, I bet Kwaśniewski knew no more about energy commodity trading than Hunter. He was just another “name” added for surface prestige.

          And that wasn’t all : The company also tapped Alan Apter, an well-respected investment banker as its board chairman, brought in a entirely new executive team and hired established international firms to audit its reserves and financial results

          Now was that all cosmetic? Almost surely, but that’s the point. Hiring little Hunter was part of a package, something akin to Extreme Corporate Makeover – The Realty TV Show. Tell us : What do you think this investigation of corporate PR will expose?

          1. Kool Aide drinker knows that when the truth comes out, everyone will also be down with the Kool Aide.

      3. The Republican level of cohesion doesn’t terrify you?

        I guess not, but only because you tend to like their positions. Gee, Brett, can you see anything objectively?

        1. To be fair, it’s not Brett alone. Go on any site which offers comments from the Hard Right or Hard Left and you always see the same ritualistic opinion:

          (1) The Other Side is always fused into a horrific cohesion, willing to ignore any doubt or ambiguity in their ruthless quest for world domination.

          (2) Their Side is always timid & divided, weakened by second guessing and namby-pamby ethical doubt.

          Ya gotta think most of the people doing this tribal song&dance have been exposed to their opposites playing the same tune. You have to wonder how they don’t get the absurdity of it……

    4. They might barely get a majority of the Democratic caucus to impeach, but they won’t get a majority of the House.

      I predict Pelosi and Hoyer as both no votes on impeachment.

      If this is laughably wrong, will you make one final post, “I am a partisan idiot” and then stop commenting in shame?

  10. Judge Alcee Hastings was impeached and removed from office after he had been acquitted in a criminal trial of the same conduct. In any other context, that would be double jeopardy. Acquitted attorneys have been disbarred under similar circumstances.

    And I think the answer in all cases is the same: Just as with bar discipline, impeachment serves a different function than a criminal proceeding, so the rules are different. In an actual criminal proceeding, where life and liberty are at stake, the stakes are high enough to give someone far more rights. The purpose of impeachment, and bar discipline, is to protect the public. So you focus primarily on protecting the public. That doesn’t mean the accused has no rights at all; it means they are significantly less than they would be if the accused were facing a jail sentence.

    Whatever one thinks of Trump’s policies, I don’t think there’s a reasonable argument to be made that the abuse of power he demonstrated by withholding aid from a foreign government unless they investigated his political rival doesn’t render him unfit for office and a danger to the republic. If he’s willing to abuse power in that fashion, God only knows what he’ll do next. And that, for me, settles the question.

    1. It surely can’t be an abuse of power if there is a reasonable predicate.

      Do you believe there was no reason to look into Hunter and Barisma?

      1. I can think of lots of examples in which it would be an abuse of power even with a reasonable predicate, including this one. I don’t know if there was reason to look into Hunter and Barisma or not, but even if there was, there’s a long list of reasons you don’t ask foreign governments — much less extort them — to go after your political enemies. The power of the presidency is to be exercised for the benefit of the American people, not for one’s own political gain, a concept this president seems not to understand.

        Should a police officer, who has access to police files and DMV records, use that information to check out people he’s interested in dating? It’s the same principle.

        1. So you seem to think you and your family becomes immune from investigation if your running for president or a member of the opposite political party from the administration.

          Did you think Trump was immune from investigation when he was running in 2016?

          1. Sam, what I think is that you’re conflating multiple issues.

            Neither Trump nor the Bidens are immune from investigations by anyone who wants to investigate them. If the Ukraine wants to investigate the Bidens, that’s their business.

            But when the President ties delivery of foreign aid to having a foreign country investigate one of his rivals for political purposes, that’s an abuse of power. If I have a friend who is an FBI agent, and I call him and tell him I’ll pay him to investigate one of my business rivals, that’s illegal, even if my business rival really is guilty of whatever I’m trying to have investigated.

            If you honestly can’t tell the difference, I’m not sure I can explain it to you.

          2. “I bribed the judge to rule for me, but it is okay because my position was legally correct” is not a defense, nor need the merits of the “legally correct” position be litigated in the criminal trial because the issue is irrelevant to whether the crime was committed.

      2. Another question is why you would ask the President of Ukraine to get involved and make the announcement Trump was looking for.

        Suppose, hypothetically, Biden was doing some sort of favor for Ukraine in exchange for his son’s deal. Wouldn’t that be a violation of US law? Shouldn’t the FBI be the ones to investigate that? Sure, they might end up asking for some cooperation from Ukraine, but it should all star with “We think Biden did this to get his son his job.” And that ought to start here in the US.

        Of course that wasn’t Trump’s concern. He just wanted the smear, without having his hand or Barr’s on it. So he does what he plainly did.

        1. Is there any evidence that a public announcement of an investigation was tied to aid?

          Any direct evidence that is.

          1. Put Mick Mulvaney, John Bolton, Mike Pence, Mike Pompeo, etc., on the stand, and there will be. No one who has thought about this for more than five seconds is impressed by this “secondhand” argument.

    2. I don’t think that’s true. I think Alcee Hastings was acquiitted of a substantive crime (Bribery or something similar); his co-conspirator was convicted on essentially the same evidence. Then Hastings was impeached for lying or misleading, not for the bribery-type offense.

  11. Basically, yes.

    Legally speaking Congress can impeach anyone for any reason it sees fit, regardless of just about any procedure. The Democrats in the House can say “we don’t like person X” for whatever reason (maybe they have a funny accent) and as long as they have a majority, they can vote on it and say “Impeached!” and the person is impeached, and to the Senate for a trial. They need call no witnesses, they can do everything in secret, etc. The Senate just then needs to convict with a 2/3rds majority. No real reasons needed. A quick mock trial, with procedures up to the Senate, and done. (Fun quick fact, with a bare majority in the House and 2/3rds of the Senators, a party can take over the government, and probably change the rules so they do it forever. Impeach whoever they want, kick out all the senators they don’t like, etc).

    Of course, if you want to look like you’re not an abusive authortarian government, you do this according to norms and procedures. You hold a fair trial. You follow previous precedent. You allow common due process that is often used in simular types of trials around the world and within the common legal tradition. “Legally speaking” none of that is actually required. Until someone abuses it totally and the law is changed.

    1. No, you do all that stuff if you want to not BE an abusive authoritarian government.

      If you just want to “look” like you’re not an abusive, authoritarian government, you put on a show trial and pretend you’re following norms and procedures, while actually running roughshod all over them.

  12. It’s “interesting” that any lawyer can argue on behalf of Donald Trump, whose whole being is the antithesis of the rule of law. Trump recognizes no law but his own appetite. On a (relatively) minor point, Trump, as commander in chief of the armed forces, routinely tweets his opinions on criminal cases, a grotesque example of “unlawful command influence”. The New York Times recently ran an article “The Navy Wants to Push Out Problem SEALs. But Trump May Get in the Way.” that contained the following paragraph:

    The president has previously made it clear that he believes the country should tread carefully when calling American troops to account for acts of war. Only last week, he announced on Twitter that the White House was reviewing the case of Maj. Mathew L. Golsteyn, a former Army Special Forces soldier charged with murder in the death of a Taliban bomb maker in Afghanistan. “We train our boys to be killing machines, then prosecute them when they kill!” Mr. Trump wrote.

    Yes, this is the man lawyers should want in the White House. (Unlike Donald Trump, I served in the army in Vietnam. I was not trained to be a “killing machine”, but a soldier who was expected to believe in “Duty, Honor, Country”, at least in theory.)

    1. That’s just prosecutorial discretion like DACA.

      Right?

      The Commander of the Navy should set the standards of the Navy.

      1. Something can be formally legal but lawless.

        But what do you care about law, don’t you advocate killing liberals? That’s not super legal either.

        1. You keep smearing me with that claim. Are you confused?


          1. Sam Gompers
            November.9.2019 at 12:46 pm
            It’s too bad we didnt get rid of the communists and socialists in America.

  13. I’m in Asia seeing things from afar, so maybe I’m not getting the whole scoop, but Taylor saying he’s not a star witness for anything and admitting that he had no conversations with Trump, and never discussed any quid pro quo with Zelensky didn’t make compelling testimony.

    And really the thing that really clinched it for me that there is nothing there is the BBC’s breathless take was that Taylor said his aide told him that he overhead half a conversation with Sondland on July 26th, and Sondland said Trump cared more about the investigation than about Ukraine.

    Wow. Some smoking gun. We already know there couldn’t have been any quid pro quo in July, and there was no investigation then.

    But the biggest reason we know the impeachment is going nowhere is because Biden is still ahead in the polls.

    There is no way Trump is going on trial in the Senate without making Biden’s firing of the Ukrainian prosecutor the lynchpin of his defense, and of course Hunters taking hundreds of thousands from a corrupt oligarch. That’s obvious now, and Pelosi and the the moderate Dems won’t allow that. Especially since Trump won’t get convicted anyway. They aren’t going to sacrifice Biden unless they are sure of removing Trump.

    1. It’s not just distance. I had an interesting conversation with my wife last night; She’s a naturalized citizen, originally from the Philippines. We don’t usually discuss politics, because we’ve got too much to discuss that isn’t politics. (Menu for the coming week, magnet school applications for our kid. Normal family stuff; Who discusses politics inside their family? Crazy people, I guess.)

      But she had a day off, and left the TV news on while lazing around the house with a cold. (For filipina housewife values of lazing around, of course, which is actually pretty busy.) And it was nothing but impeachment. So she wanted my take on what was going on, because she couldn’t for the life of her figure out why he was being impeached. Even the regular network coverage, not FOX news (Which we don’t watch in our house, shocking as some people will find that.) left her puzzled about what he was supposed to have done that was actually bad enough to justify removing him.

      I’ve made this observation before: The Democrats case against Trump doesn’t persuade anybody who didn’t already want him gone. It’s just a complete nothing burger so far as anybody who didn’t already hate him is concerned.

      That may be enough to get him impeached by a House that has a Democratic majority, but it isn’t remotely enough to get him convicted in the Senate. And, as you say, the most obvious defense for him to mount is proving Biden corrupt. So, why would they want that trial?

      I think maybe they’ve got themselves into a corner: They’ve been telling their activist base that Trump is a monster for so long, they’d have no way of explaining a decision to NOT impeach him.

      1. I’m sure you gave her a fully objective account.

        The Democrats case against Trump doesn’t persuade anybody who didn’t already want him gone.

        The Republican defense doesn’t persuade anyone who is not a Trump idolator.

        1. That’s a bit tendentious but seems to be basically accurate: as with the Mueller report, the people who already disliked Trump have decided this is disqualifying, while the people who liked him think it’s not a big deal. And I don’t see any developments in these hearings changing anyone’s mind over the next few weeks.

          1. Even if that’s what you think, it’s the usual “my side is standing firm on principle, your side is conspiring against the common good” crap from Brett.

    2. Sorry, but I don’t see the relevance of anything the Bidens may have done. The Bidens aren’t on trial. I’m not even sure they’re witnesses. The issue is whether Trump abused power, not whether someone else may also have acted improperly.

      1. “The Bidens aren’t on trial.”

        Legally, no. Politically, yes.

        1. Bob, for once I actually agree with you. If Biden is the Democratic nominee, the voters can decide in November if whatever his son may or may not have done should disqualify him from the White House. Congress, on the other hand, is concerned with whether, legally, the President abused his power. So you’re right; that’s two separate questions. And “but what about the Bidens” is not a legal defense.

          1. Here is the thing, it’s all political.

            So when the Democrats are running the agenda it’s all about Trump corruptly trying to railroad St. Joe.

            When the GOP is running the agenda you will hear almost nothing but how Biden and his family were running the Vice Presidency as a racket and why Trump felt the need to save the US’s reputation from the Biden/Obama corruption machine.

            You don’t have to think Trump is innocent to think Biden and family were milking what they thought was their last opportunity to get rich 2012-16 for all the cash they could get.

            1. Hunter Biden was surely milking his last name.

              Whether Joe Biden did anything in exchange is a different matter, and we have zero evidence that he did. Trump didn’t need Ukraine to investigate. He has plenty of investigative resources right here in the US.

              And don’t repeat that crap about the firing of the prosecutor.

            2. The question is not whether Trump was “corruptly trying to railroad St. Joe.” Rather, the question is whether he abused his power by inviting a foreign power to influence our election, which is quite a different question altogether.

              Anyone who tries to make this about the Bidens is simply creating a distraction, and “but what about” is not a legal defense.

              1. No it’s not a “whatabout”.

                Trump asked Ukraine to investigate the Bidens. Stipulated.

                The Democrats claim he had a corrupt motive. Are you saying Trump shouldn’t have any opportunity to present a defense of having a legitimate motive? If there was any corruption involved in either Hunter getting a big payday when his father was the Ukrainian point man for Obama, or Joe knew or should have known than the prosecutor he got fired was a problem for his son’s employer then that provides a legitimate non-corrupt motive. That would be a legitimate defense in court, it should be a legitimate in the House, and if need be it would be a legitimate defense in the Senate.

                1. Let’s further stipulate that there is enough uncertainty to justify a legitimate investigation of the Bidens that is not based on a corrupt motive. Can we then drop Hunter Biden from the witness list?

                  The question then becomes was Trump motivated by this uncertainty and legitimately concerned about Ukrainian corruption? If he was, perhaps he should have requested the DoJ to launch an investigation a couple years ago instead of turning it over to Giuliani. Perhaps he should be interested in investigating other aspects of corruption as well (see Mitt Romney’s tweet). Perhaps yesterday’s revelation that Sondland first-hand heard Trump say he was more interested in the Bidens than Ukraine is important.

                2. Kazinski, legitimate motive has nothing to do with it. If I rob a bank to feed the homeless, I am still guilty of a crime and going to prison, no matter how laudable my motive may be.

                  Assume the Bidens are the most corrupt people who’ve ever existed. Assume Hunter was robbing the Ukraine blind. Even assuming all of that to be true, the problem is the method by which Trump went about it. His method was an impeachable abuse of power. Which is why the Bidens are largely irrelevant to this conversation.

                3. No, actually, he pressured Ukraine to ANNOUNCE that it was investigating the Bidens. Conducting a quiet investigation would not have served his purposes.

                  As for whether his motive was corrupt, the witnesses yesterday testified that Trump had no interest in “corruption” unless it involved the Bidens, even though there’s plenty of corruption in Ukraine and elsewhere. That’s pretty dispositive right there. But if the White House wants to authorize Pompeo, etc. to testify to Trump’s pure motives, it can certainly do so. It isn’t. Why oh why could that be?

                4. Trump asked Ukraine to investigate the Bidens. Stipulated.

                  No. He asked Ukraine to announce an investigation of the Bidens.

                5. Are you saying Trump shouldn’t have any opportunity to present a defense of having a legitimate motive?

                  Let’s hear from his buddies in the whole plot. You can’t claim he’s being denied the chance to present a defense when he prevents those who could testify in his defense from appearing.

                  What I see right now is GOP’ers in the hearings making zero case, presenting no exculpatory facts, and generally acting like jackasses.

          2. “not a legal defense”

            Its not a legal proceeding, its a political one. Anything can be a “defense” of sorts, meaning sufficient to maintain GOP support.

              1. “Nihilism.”

                No, politics.

                Were the 1997 Democrats “nihilists”? They defended Clinton to the last.

                How often has “substance” or “legal” ever been the deciding factor in politics?

                The GOP may or may not suffer at the polls if they defend Trump to the last but they will certainly suffer if they don’t. Primary challenges, Trumpists staying home etc.

                1. Caring only about what the immediate outcome will be to the point of ignoring the truth? Not drinking the kool aide and going for the tin foil, but just full-on not even mentioning evidence and events as anything other than political risks and benefits? Nihilism.

                  I still defend Clinton for the impeachment being ridiculous for what he did. Dems in 1997 defended Clinton for more. They were at least true believers. You’re just calculating. Trump will get away with it, so why does anyone care? That’s chilling, actually.

                  Say what you will about the tenets of National Socialism (or tribal Democratism, but at least it’s an ethos!

                  1. “They were at least true believers. ”

                    No political calculation. Nope. Only republicans act politically. Pull the other one.

                    “That’s chilling, actually.”

                    What is chilling is a conspiracy of bureaucrats at CIA, State and even the Army to undermine the elected president. Aided and abetted by a corrupt mass media and a morrally bankrupt left wing baby killing party.

                    This whole effort is just a continuation of the unhinged, hysterical reaction to Trump beating Clinton that literally started the morning he won.

                    1. Yeah, maybe some Dems in the 90s were as venal as you are today, Bob. Congrats.

    3. You may not have considered that there are probably upwards of 90 people in the senate who have family members exploiting their own respective relationships to U.S. senators for career advancement purposes. I don’t know that the senate is going to be quite as eager to make that simple fact seem criminal as you think.

      1. Don’t overlook Ivanka and the boys.

      2. “I don’t know that the senate is going to be quite as eager to make that simple fact seem criminal as you think.”

        Maybe not but we are still getting an acquittal. Corrupt or not, the GOP isn’t setting itself on fire to appease the Resistance!!!!

        Biden is still going to be tried by GOPers, in or out of the Senate.

  14. Rather embarrassingly for Prof. Calabresi, the Sixth Amendment does not apply in “all criminal proceedings” – it applies in “all criminal prosecutions.

    I would not have thought that either the House to Senate impeachment proceedings would be accurately characterized as a criminal prosecution. On the other hand, I also wouldn’t have thought they could be characterized as a “judicial proceeding”, and yet the consensus seems to be that they are, for purposes of disclosure of the Mueller grand jury material.

  15. There’s a big difference between “this is unconstitutional” and “this isn’t fair.”

    Constitutionally, the House of Representatives doesn’t have to hold any hearings at all before voting on articles of impeachment. They are within their rights to do what they are doing now.

  16. Of course it’s a show trial. That’s been clear from the beginning. The House was going to impeach, no matter what, and the Senate is going to refuse to remove from office. Everything else is just grandstanding with an election coming up.

    1. If they were going to impeach, no matter what, they would have done it about 8 months ago.

  17. It is important, instructive, and delightful that the founder and chairman of the Federalist Society is, after decades of careful and strenuous work to try to make movement conservatism respectable in our society, unwinding his partisan polemics at the Daily Caller.

    The Daily Caller. Publisher of white supremacists, nonsense, and more white supremacists.

    Movement conservatives attempting to operate in the American mainstream are a paltry bunch, and increasingly so. The culture war is becoming a rout.

    1. I always knew the Federalist Society were ideologues as much as idealists. But now they’re joining much of their partisan brethren in divesting of all beliefs other than owning the libs.

      1. “Ed Whelan@EdWhelanEPPC
        Today’s confirmation of Menashi will flip CA2 to a majority of Republican appointees.
        Next week’s confirmations of Lagoa and Luck will flip CA11 to a majority of Republican appointees.”
        11:26 AM – 14 Nov 2019

        1. The degradation of the judiciary continues apace.

        2. Don’t worry too much about that. The composition of those circuits will change again when the Democrat is elected in a year.

        3. Oh and an addendum to my previous comment. The poorly qualified appointees will probably quit in short order because the don’t have the chops to handle the job they have been handed. You know all the negative reinforcement they will receive because they are unable to perform their duties effectively will make going to work a daily trial.

  18. “In both the Nixon and Clinton impeachment proceedings, the House gave presidents their Sixth Amendment rights.”

    No, they didn’t, because there are no sixth amendments rights to give.
    They may have given Nixon and Clinton opportunities that Trump isn’t getting… but the source of these opportunities is the House, not the sixth (or any other) amendments.

  19. Republicans complaining about tradition in government operations is laugh out loud funny.

Please to post comments

The Supreme Court Needs to Decide With Finality Whether DACA Is Legal

The Court punted on deferred action in 2016, denied certiorari before judgment in 2018, and may yet again evade a merits ruling in 2019

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The Supreme Court's October 2015 Term was cut short because of Justice Scalia's unexpected passing. As a result, the Justices were unable to decide several of the most important issues on the docket. For example, the short-handed Court punted in Zubik v. Burwell. (To this day, the judiciary continues to grapple over the contraceptive mandate.) And the Court also split 4-4 in Texas v. U.S., which considered the legality of DAPA. At the time, I wrote in the Harvard Law Review that the latter case stood in a unique posture: "Because this case will likely return to the Court following the remand, there will be a rare opportunity to revisit the appeal in a new light."

Of course, I expected Hillary Clinton to win the election, and continue to defend DAPA, as well as DACA. Instead, Donald Trump won the election. His administration promptly terminated DAPA, and after pressure from conservative states, announced the decision to suspend DACA.

The Supreme Court, therefore, was never called upon to decide the legality of DAPA, as well as DACA, directly at least. Instead, the Justices were asked to decide a related, but distinct question: could DACA be suspended based on the Attorney General's conclusion that the policy is illegal.

In January 2018, the Solicitor General submitted a petition for certiorari before judgment. He urged the Court to hear the case as soon as possible in light of the sweeping consequences of the policy. The Solicitor General's urgency was obvious: every day that lapsed, as Dreamers further relied on the policy, would make it more difficult to wind down DACA. The Court denied that petition in February 2018. As a result, the issue could not–and indeed will not–be resolved until June 2020. Right before the next presidential election.

Now the case is at last before the Court. And, based on my reading of oral argument, we may get a third dodge: the Justices will rule that the rescission memorandum is not subject to judicial review. This decision would leave open the legality of the policy for the foreseeable future. And, due to the timing of the wind-down period, the policy may not be suspended until after the inauguration date.

In theory, a Democratic President could simply revoke the cancellation memorandum on January 20, 2021, and allow the Dreamers to renew their status. Indeed, the new President would likely expand the policy to account for people who entered the United States at a later date. At that point, Texas would simply go back to District Court and seek another injunction to block the policy. Throughout this entire period, as the executive's position waxes and wanes, the status of the Dreamers will remain in flux. And the cycle would continue indefinitely.

A Supreme Court ruling based on justiciability will usually be viewed as a minimalist decision (however that term is defined). Why should the Court decide a very difficult question when it doesn't have to?

Justice Gorsuch alluded to an answer in a related colloquy, in which he cast doubt on the benefits of a remand:

JUSTICE GORSUCH: Well, if I might ask a question about that if we're talking about the merits then, and then I –I'll pass off the baton. The reliance interests that we've -we've talked about earlier, I –I think your -your friend on the other side would say we did address reliance interests in a paragraph and we could do it in 15 pages, but we'd say pretty much the same thing at the end of the day, and it would take another six years, and it would leave this class of persons under a continuing cloud of uncertainty and continue stasis in the political branches because they would not have a baseline rule of decision from this Court still on this issue.

The Court should resist the siren call of restraint. There is nothing minimalist about such a ruling. Indeed, another dodge would allow the reliance interests of the Dreamers to become even further cemented in our polity. However difficult it is for the government to justify rescission today, it will become even more difficult to do so in two years when the case comes back up on remand. A punt here would effectively cement DACA as a policy, without ever deciding its lawfulness.

The Court should issue, in Justice Gorsuch's words, "a baseline rule of decision," now. If DACA is illegal, then the administration was justified in suspending the policy. If DACA is legal, then the 46th President could resurrect the policy. I have an opinion on which answer is correct, but I would much prefer a clear decision one way or the other, rather than further dodges. Letting this issue linger for the foreseeable future creates uncertainty and doubt in all three branch of government, and worst of all, leaves the Dreamers under a "continuing cloud of uncertainty."

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  1. Gorsuch’s statement is insightful. The amount of time cases take is an injustice that the entire judicial branch should be ashamed of.

    1. Yes. This is an important point, and one I think that partisans from both sides can agree with.

      1. I wish that were true, but when each side is doing something they’re pretty sure will get struck down (abortion or gun bans most commonly) they’re happy to play a revolving role of injunctions, because a committed legislature can pass bills faster than a judge can enjoin them.

    2. I’d agree here. A constitutionally dubious policy which is made, then held in judicial limbo forever is not a good way to make policy. A judicial decision should be made on it.

      1. Yes, the court should rule on legality of DACA especially since they are hearing the appeals of the 9th and 4th circuit decisions both of which declared DACA legal.

  2. And this is the whole problem of instituting a problem like this by executive order instead of actual law in the first place. It leaves everything up in the air and uncertain, including if it’s going to be continued.

    1. Congressional laws can be repealed, too. The “up in the air” problem is the federal judiciary’s pointless involvement in this fight. That’s solvable.

  3. The Supreme court is dodging it. They’re dodging a lot of things they should by rights decide.

    As an institution they’re in control of their own docket, and they’re getting lazy.

    1. I would disagree with you. The SCOTUS is finding itself increasingly in the middle of issues that need to be resolved by legislation. It is reluctant to take on the role and “legislate from the bench”. The lazy people here are Congress. They do not wish to advance legislation and in doing do so put themselves on the record as for or against new laws. The Executive branch is also guilty here. It is well within the President’s authority to revoke DACA, yet President Trump want the court to find the law unconstitutional and in doing so remove his culpability in eliminating DACA. SCOTUS has every right to say a pox on all of you for dumping this in our laps.

      1. Nobody on my side is asking them to legislate from the bench. DACA is either constitutional or it isn’t, and neither conclusion is legislation. That they’d rather the political branches didn’t confront them with this case is irrelevant.

        And, no, the Supreme court hasn’t got every right to say a pox on all of you; They’re presented with a case, they should resolve it.

        This isn’t the only example of them dodging things. After McDonald they stopped taking 2nd amendment cases, in the teeth of very blatant circuit splits.

        1. “DACA is either constitutional or it isn’t, and neither conclusion is legislation.”

          Congress and the Executive can make their own independent judgments re: constitutionality. They don’t have to submit the question to the Court at all. If Congress and the President agree it is unconstitutional, they can just not have DACA.

          “They’re presented with a case, they should resolve it.”

          Nonsense. SCOTUS should respect its coordinate branches and stay out of their way when they’re having a fight. It certainly shouldn’t step in just because Texas wants an answer.

          1. ” If Congress and the President agree it is unconstitutional, they can just not have DACA.”

            The President decided it was unconstitutional, and this very case was because the courts WOULDN’T let him just not have DACA. No need for Congress to be involved, as they weren’t involved in creating the program in the first places.

            Which is exactly WHY it’s unconstitutional!

            1. “The President decided it was unconstitutional, and this very case was because the courts WOULDN’T let him just not have DACA.”

              Right, which is a great argument for judicial minimalism. As predicted by Professor Blackman, SCOTUS is going to declare the district court decision error. (It should not have been reviewable at all.)

        2. Not to mention that, even when a lower court does rule for 2nd Amendment rights, the governments get years long delays, stays while the appeals are pending, and so forth. But when a district court judge finds a right to “marry” a person of the same sex, they get “marriage” licenses the very next day.

      2. “The SCOTUS is finding itself increasingly in the middle of issues that need to be resolved by legislation.”

        It was already resolved by legislation. Illegal immigration is illegal.

        This wasn’t good enough for the big business lobby that wants to suppress wages and increase profits, and the Democrats who need to dilute American voters that won’t go along with their socialist agenda. So they’re going around the law.

        1. If you’re so certain that Presidents Obama and Trump just brazenly disregarded “the law” what difference would an order from SCOTUS make? If Congress wants to confront the President, it can do so without Justice Kagan’s permission.

          1. If only there was a third party, someone other than Congress or the President, whose job it was to interpret the law, and to definitively determine when something disregarded the law. Then, as a matter of policy, the other officers of the executive branch would have to listen to this third party, whose job it was to definitively interpret the law, and any questions in it.

            1. “Then, as a matter of policy, the other officers of the executive branch would have to listen to this third party, whose job it was to definitively interpret the law, and any questions in it.”

              Why? If the President ignored Congress in the first place, why wouldn’t he ignore SCOTUS.

              “To be sure, if Congress cannot invoke our authority in the way that Justice Alito proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation. That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to com-pel executive action without a lawsuit—from refusingto confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think? Yes: a direct confrontation with the President.”

              1. Oddly enough, given a direct new Supreme Court decision issuing the a legal ruling that goes against what the President recently ordered, many, if not most or all senior Administrative officials will say
                “The SCOTUS said this. This is illegal. We can’t do it”.

      3. The irresponsible people here are Congress. They do not wish to advance legislation and in doing do so put themselves on the record as for or against new laws.

        I agree. This is a political question. The Congress needs to resolve it. This is a case where I would like SCOTUS to step back, and let the other branches resolve the question.

        1. They did resolve it: DACA was proposed, and rejected.

          1. Yep….there is that. 🙂

  4. The Court should resist the siren call of restraint.

    Is this a call for an advisory opinion? I mean, I know the Court’s been seen to play with justiciability before, but this is kind of a blatant policy-based argument to ignore such concerns.

    1. No. DACA’s legality appears to be squarely before the court. California says it’s legal, DHS says it’s not. One of the Q’sP is whether the rescission was lawful. DHS claims that the rescission was lawful because DACA was not. The court can reach that question if it chooses.

    2. How is it an advisory opinion? One way of resolving this case is to hold DACA unconstitutional. Another way of resolving this case is to hold DACA constitutional, and then, based on that conclusion, hold the President’s order improper.

      In neither of those two scenarios would the holding on the constitutionality of DACA be an advisory opinion.

      1. But the Court isn’t being asked to determine if DACA is unconstitutional. It’s asked to determine if suspending DACA violates the APA. If the answer is “no, or at least we can’t answer it” that would also resolve the case.

        1. And the administration’s position is, essentially, “Terminating an unconstitutional program can’t violate the APA.” Which makes whether it’s unconstitutional kind of relevant.

      2. Or, DACA is constitutional as a broad enforcement decision under one president who thinks it’s within his power to do so, and the reverse is also constitutional when a different president thinks he lacks the same power.

        The Court can merely say that either action is within the bounds they will hold the Executive to, but that different executives may have their own enforceable views on their own powers.

  5. Well the legal question in United States v. Texas is non-reviewable in the first place. A minimalist Court would decline to address the question at all. The argument here, then, is that it isn’t minimalist for the Court to decline to address the question now, since the Court isn’t reliably minimalist for a future decision. This is nonsense. The answer is that the Court should act like a minimalist now and in the future. This is not a question for the Courts, but the political branches. While dreamers’ reliance interests may be better served by an activist Court–or they may not–this is a normal political fight between two other coordinate branches of government. Texas (and the other complaining states) are already represented in Congress and the Executive.

    Placing this political question into SCOTUS judicial receivership will not do the system any favors, to borrow a line from the late Justice Scalia.

    1. Somehow, I doubt you argue the same point when it comes to the lawsuits against Trump building the wall.

      1. What? I think the President’s decision to suspend DACA should be non-reviewable. I think the President’s decision to declare a fake national emergency and divert funds is something that should be addressed by a direct confrontation between Congress and the President, and would prefer that direct confrontation to involvement of the Supreme Court. I doubt there is any commenter on this website who has more zealously argued for judicial minimalism–consistently–than me. I don’t allow my disagreements with the President on policy to change my views about judicial minimalism.

        If you have any doubts about what my position would be, just ask. I’m not sure precisely what you mean, but tell me what argument you think I wouldn’t make re: “lawsuits against Trump building the wall” and I’ll tell you if I would make them, or not. I firmly support political solutions to political problems over judicial involvement, even if my ox is being gored.

        1. “I think the President’s decision to declare a fake national emergency and divert funds is something that should be addressed by a direct confrontation between Congress and the President”

          It was. The National Emergencies act has a procedure for Congress to override the emergency declaration. They tried it, and fell short of the necessary number of votes. So they had that confrontation, and the President prevailed.

          1. I don’t agree with your interpretation of the National Emergencies Act, and I disagree (on policy) with the President that there is a National Emergency, but I’d rather that fight continue between the President and Congress, rather than have it placed in the hands of SCOTUS.

              1. Missed closing my html there, but the link works.

  6. Why ? One doesn’t decide questions of law for speculative reasons.

    If the Trump admisnistration wants to end the program as a matter of policy discretion, that ought to be enough to end it.

    And if a future Democratic administration wants to reinstate it, then it will be a live issue.

    But why does Article III standing permit a federal court to offer an advisory opinion to a currently nonexistent possible future administration just because it might possibly want to have a different policy from the current one?

  7. I also don’t understand the reliance issues. When police do a sting operation, those stung rely on a belief that the folks they are dealing with aren’t police collecting information on them for purposes of future law enforcement.

    Why is this different? To put it crudely, DACA can be regarded as nothing more than a massive sting operation to get illegal immigrants to supply information about themselves, to make it easier to round up and deport them when the time comes. Of course they were told otherwise and believed it. But what makes them different from every other criminal who is led to believe otherwise in every other sting operation?

    1. The reliance issue is just an emotional appeal to avoid facing how badly Obama screwed these people. He didn’t give them a legal status in any meaningful sense. He just gave them a promise that he wouldn’t try and deport them. That promise means nothing. Obama, despite what the open borders hacks at Volkh try and claim, had no power to bind himself much less future Presidents. He didn’t even have the power to bind immigration judges. Even if I have DACA status, there is nothing to stop an immigration judge from ordering my deportation if some rogue ICE office asked them to do so. These people are still illegal aliens under the law.

      The fact that they believed Obama and relied on an illusory and illegal promise doesn’t change their status. All it does is create an emotional and moral appeal to grant them actual legal status in place of the fake status they have.

    2. Promising nonprosecution is different than promising a contest prize or some other ruse.

      When someone falls for a ruse, shame on them. But when the sovereign says “you can go ahead and do X, don’t worry, you won’t be prosecuted”, that’s a promise of immunity. And promises of immunity ARE often enforceable (see, e.g., the self-incrimination caselaw).

      1. But they didn’t even get a promise they wouldn’t be deported. The “D” in “DACA” stands for “deferred”. All they were promised was that they wouldn’t be deported right away, and they were explicitly told that the government could change its mind at any time.

        1. Sure, but that’s a very formalistic argument. The nature of the program was for them to come out of the shadows and identify themselves to receive government benefits. So the subtext that you can safely do that is important as the text here.

          Bear in mind, I am not saying the current case turns on this. But I think the argument that DACA recipients have reliance interests is not unreasonable and is not conclusively refuted by the formal name of the program.

          1. I don’t think it is unreasonable but it is problematic. If you recognize those interests, then any time an executive does something unlawful, the fact that someone relied upon it can be used as a post hoc justification for its legality. And that is not a good precedent at all.

            The difference between DACA and a grant of criminal immunity is that prosecutors have the authority to grant immunity in an individual case. That is entirely different than granting immunity to an entire class of criminals.

            The analogous case to DACA would be a local DA promising to no longer prosecute marijuana possession and then using the fact that people relied on that promise as justification for preventing a future DA from reversing the decision and prosecuting those cases again. By your logic, once a DA made a promise, the reliance on it by people in the community would keep future DAs from reversing it. And that is nuts.

            1. There are still a few DA’s who don’t believe in spousal rape. I suppose once you get such a DA into office, have them promise that there will be no prosecutions for such, it’s open season until the end of time. Reliance interest!!

            2. Well, how about this example. Suppose Carter announced that everyone who went to Canada to avoid the Vietnam War could come back and wouldn’t be prosecuted.

              Then a bunch of people come back, and Reagan then announces “we’re gonna prosecute you anyway, Carter had no authority to promise that”.

              I am not making an argument on legality- that would require expertise about criminal law and promises of immunity that I don’t possess. But if people take an action that is potentially detrimental to their rights based on a government representation that they may do so without risk, that does create significant reliance interests.

          2. I like formalistic arguments. The law is SUPPOSED to be formalistic.

            If you tell somebody, “You can file for this program, but we make no promises.” you haven’t made any promises. Not any the law should take cognizance of.

            Period, end of story.

            1. If only the DACA memo had mentioned this! Then we could… oh wait:

              https://www.dhs.gov/xlibrary/assets/s1-exercising-prosecutorial-discretion-individuals-who-came-to-us-as-children.pdf

              “This memorandum confers no substantive right, immigration status or pathway to citizenship.
              Only the Congress, acting through its legislative authority, can confer these rights. It remains for
              the executive branch, however, to set forth policy for the exercise of discretion within the
              framework of the existing law. I have done so here. “

            2. I like formalistic arguments. The law is SUPPOSED to be formalistic.

              The law is not a brooding omnipresence in the sky, Brett.

              1. But it IS a system of formal rules.

                1. Not really, unless you are talking about Roman or Napoleonic Law or something.

                  The Common Law system is a system of case by case adjudications, which generate rules of varying levels of formality through an iterative process with plenty of play in the joints to accommodate, as Holmes called them, the “felt necessities”. It’s a wonderful inheritance from the British, and it’s enacted in the Constitution.

          3. This is crazy. You might be able to make the argument that Obama can grant permanent immunity from deportation, although I’m skeptical of that. When the program ends, their ongoing presence is a fresh violation, much like kidnapping is an ongoing crime. They can be deported for their ongoing presence, just like any other unauthorized immigrant.

            But even if Obama could do that, he didn’t in fact do so. Immunity from the law in perpetuity by explicit grant is questionable. Immunity from the law in perpetuity by subtext is insane. The program did, at most, what the program said it did and perhaps not even that to the extent it exceeded statutory authority. To daisy chain that into a super legal status is untenable and without precedent.

      2. So if President X doesn’t like labor or environmental laws, and said laws don’t provide a private cause of action… all he has to do is paper it up and grant immunity to prosecution? And, what’s more, this binds his successors such that businesses can go on violating labor law and polluting with impunity? Your understanding of presidential power is radically broad.

      3. “that’s a promise of immunity”

        You are making an estoppel argument. Estoppel generally does not run the government.

  8. It is not up the Court to clean up this mess. Rule by executive discretion, which is all DACA is, necessarily involves the law changing with the attitude of the administration in power. It is as Obama informed us “discretion” after all.

    DACA was a grossly illegal act where the President sought to unilaterally re-write immigration law through selective enforcement. That legality of that act, however, is not the issue here. The issue here is the current President’s power to undo that act. And that is the only question upon which the court needs to rule. If it rules that somehow Trump can’t undo it, that necessarily means DACA was legal. If it rules he can, which is almost certain to happen, that renders the issue of whether it was legal in the first place moot.

    If some future President holds out this carrot again, the court can rule on it then.

  9. The court needs a case to rule on Anchor Babies too. The misreading that makes illegals citizens is a huge magnet that needs to be destroyed.

    1. Wong Kim Ark is both a correct decision and is never going to be overturned even if you think it is wrong.

      Conservatives need to figure out how to win elections and develop policies consistent with birthright citizenship. It’s not going anywhere.

      1. “develop policies consistent with birthright citizenship. It’s not going anywhere.”

        I mostly agree with you here, but your wording on what I quoted isn’t great. There are two separate forms of birthright citizenship, one by blood (inherit citizenship from parents*) and one by territory (born in the jurisdiction of the US. US law recognizes both. The people you criticize only want to get rid of one.

        * The child of US citizen parents is a citizen by birth, even if born in a foreign country.

        1. I’ve wondered about this one.

          Suppose that Mexico declares war on the US, and their strategy entails surreptitious infiltration of the US by terrorist sleeper cells (hey, my hypothetical). If those Mexican army infiltration units had children (suppose by also transporting kidnapped Venezuelans), would the children be US Citizens at birth? If yes this is a boring hypo and it’s over, but if No then how do you tell them apart?

          The easy rule of hostile military invaders aren’t “subject to the jurisdiction thereof” because they fall under the Geneva Conventions and the Law of War isn’t useful because it doesn’t provide a way to tell them apart, so how do you know which is which?

          1. Well, how do you prove someone was born in the US who was a home birth? (And I might add, this was a live issue at the time the Fourteenth Amendment was adopted. Many of the people the amendment made citizens were born in slave cabins, after all.)

            Problems of proof are just that- we have courts that can determine under what circumstances someone was born with various forms of evidence.

        2. Well what we usually call birthright citizenship is the provision of the Fourteenth Amendment that says that all persons born in the United States and subject to its jurisdiction are citizens of the United States.

          And that, as I said, isn’t going anywhere.

  10. The left has created this entire problem. If they would just follow the rule of law (which they like to bring up as a talk point and beat that drum when it comes to Trump ignore inconvenient laws other times).

    DACA was illegal from its outset and the only reason the courts have sided with the left is because of the “Orange Man Bad” exception to legal rules.

    1. And because every third worlder allowed to stay is more Democrat Party votes, if not now, eventually.

      1. More illegals to stuff illegal votes into ballot boxes. Keeps the Dems in office and the welfare checks being delivered on time. Nice little scam the left has going on.

        (Remember when the Rodney King riots mysteriously ended because welfare checks weren’t being delivered? Show you how much control the left gets out of the public dole).

  11. The Supreme Court in general remands way too much. Its wasteful and costly to litigants.

  12. So is it being suggested that the court should rule that this matter is nonjusticiable and then add as orbiter dictum that Obama’s DACA order was illegal?

    1. Obiter dictum, that is.

  13. It is remarkable that the bigots think they can win this round of America’s successive flirtations with ignorance and intolerance associated with immigration.

    Did right-wingers uniformly refrain from studying American history? The bigots do not win, at least not over time.

    1. So you are finally facing the fact that your bigoted behind is going to get booted out soon enough?

    2. Soviet Russia wants you back comrade. For the people’s proletariat, and the ultimate victory of the left wing.

  14. I fully agree with Professor Blackman’s analysis here.

    The SCOTUS needs to make a decision on whether or not this sort of action in regards to DACA is constitutional or not. On whether or not this sort of executive action, which goes far beyond simple prosecutorial discretion, is constitutional or not. Because it will come up again. And we’ll be right here again, with a question on whether or not it’s constitutional.

    Kagan will likely try to pull Roberts into a minimalist decision that says “well, it can’t be reviewed right now by the SCOTUS, as it’s an agency decision” with a 6-3 or 7-2 decision (including Breyer), which punts the constitutional question about DACA until later. At which point it may get revived in 2020 or 2024, or 2028, and states will sue again, and we’ll be back here.

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Free Speech

Can Childhood Sexual Abuse Complaints Be Routinely Temporarily or Permanently Sealed?

And does a Vermont statute mandating such sealing apply in cases that are being litigated in federal court?

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A Vermont statute (12 Vt. Stats. Ann. § 522) provides that key documents and hearings in lawsuits over "childhood sexual abuse"—alleged abuse that happened when the plaintiff was under 18—would be either temporarily or permanently sealed:

If a complaint is filed alleging an act of childhood sexual abuse, the complaint shall immediately be sealed by the clerk of the court.

The complaint shall remain sealed until the answer is served or, if the defendant files a motion to dismiss …, until the court rules on that motion.

If the complaint is dismissed, the complaint and any related papers or pleadings shall remain sealed.

Any hearing held in connection with the motion to dismiss shall be in camera.

(Note that the statute will often be applied when the plaintiff is no longer a child; indeed, Vermont just repealed the statute of limitations for such cases.)

This statute is very much an exception; the normal rule is that civil lawsuits are decided in open court, with openly filed papers, so that the public can monitor what the courts are doing. In the words of Justice Holmes writing in 1884,

It is desirable that the trial of [civil] causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

Indeed, most courts conclude that this rule of open access is generally mandated by the First Amendment (following Richmond Newspapers, Inc. v. Virginia (1980), which took that view as to criminal trials). The Vermont statute thus raises several questions:

[1.] Is it constitutionally permissible to temporarily seal complaints in these cases until an answer is filed—generally just three weeks, unless the defendant gets an extension—so that the public gets access to the complaint and the answer at the same time?

[2.] Is it constitutionally permissible to temporarily seal complaints until the motions to dismiss are decided, which could take months?

[3.] Is it constitutionally permissible to permanently seal complaints if the judge grants the motion to dismiss?

[4.] How is all this supposed to practically work, when the statute on its face calls only for the sealing of the complaint (until a motion to dismiss is granted, when "the complaint and any related papers or pleadings shall remain sealed")? Does the "shall remain sealed" language suggest that the motion to dismiss and the responses (as "related papers or pleadings") would themselves be sealed at the outset, because they generally discuss the facts of the case?

But a case brought under the statute, and then removed to federal district court, also raises another question:

[5.] Does the Vermont state sealing statute apply when the case is being litigated in federal court?

I've moved to intervene and unseal in this case, Giroux v. Foley, No. 2:19-cv-00187-cr, and I thought I'd post my motion, in case any of you are interested. (Note that, when I filed my motion, the entire docket was sealed; but yesterday the District Court unsealed the docket, my motion, and its initial order to seal.) Here are the juicier parts, for some values of the adjective "juicy":

[II.] Whether this case is sealed is governed by federal common law and the First Amendment, not the Vermont statute to which the Motion to Seal appeals

The docket entry for Defendant's Motion to Seal suggests that defendant is relying on Vermont's statute that calls for mandatory sealing (whether temporary or permanent) of documents in childhood sexual abuse cases, 12 V.S.A. § 522(b). But "[u]nder the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law," Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996); the rules controlling access to court files are procedural, not substantive. And, of course, even if the Vermont statute did apply in federal court, it would be trumped by the First Amendment right of access. See, e.g., Burkle v. Burkle, 135 Cal. App. 4th 1045, 1048, 1070, 37 Cal. Rptr. 3d 805, 808, 827 (2006) (statute requiring "a court, upon the request of a party to a divorce proceeding, to seal any pleading that lists and provides the location or identifying information about the financial assets and liabilities of the parties" "is unconstitutional on its face as an undue burden on the First Amendment right of public access to court records").

[III.] The public has a presumptive right of access to complaints, court orders, motions to seal, and the docket

[A.] Complaints: Under both federal common law and the First Amendment, the public has a presumptive right of access to complaints. Bernstein v. Bernstein Litowitz Berger & Grossmann, 814 F.3d 132, 140-41 (2d Cir. 2016). "'A complaint, which initiates judicial proceedings, is the cornerstone of every case, the very architecture of the lawsuit, and access to the complaint is almost always necessary if the public is to understand a court's decision.'" Id. at 140 (quoting FTC v. Abbvie Prods. LLC, 713 F.3d 54, 62 (11th Cir. 2013)).

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  1. IANAL. I would have thought that common law, as imperfectly understood by me to mean long custom and common sense, would say that court proceedings must be public because the public is being asked to enforce them, so to speak, in the form of taxes and political support for the judicial system; as opposed to private arbitration proceedings. Never would have thought of dragging in the First Amendment as freedom of the press. Lawyers sure do have some funny ways of doing things…..

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Today in Supreme Court History

Today in Supreme Court History: November 13, 1856

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11/13/1856: Justice Louis Brandeis's birthday.

Justice Louis Brandeis

Don't Forget the One-Fifth Clause

A column at Politico claims that the Senate can, by simple majority vote, decide on a secret ballot for impeachment -- but I don't think so.

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This column at Politico (by Republican political consultant Juleanna Glover) argues:

By most everyone's judgment, the Senate will not vote to remove President Donald Trump from office if the House impeaches him. But what if senators could vote on impeachment by secret ballot? If they didn't have to face backlash from constituents or the media or the president himself, who knows how many Republican senators would vote to remove?

A secret impeachment ballot might sound crazy, but it's actually quite possible. In fact, it would take only three senators [Republicans who would cross over to form a majority with the Democrats] to allow for that possibility.

But I don't think that's right; article I, section 5 of the Constitution provides (emphasis added),

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….

That seems to provide a clear rule governing the matter: If 1/5 of the Senators oppose a secret ballot, the yea and nay votes "shall … be" made public, e.g.,

You'd need 81 senators for secrecy, not 51. Whatever one might say as a policy matter about the advantages and disadvantages of secret ballots, the Constitution's text has taken a very specific stand on this subject. (Prof. Josh Chafetz (Cornell) has argued the same, and I'm sure others have as well.)

The column has an UPDATE, reading,

Some constitutional scholars have pointed out that Article 1, Section 5, of the Constitution designates that 20 senators can oppose a secret ballot on "any questions," but "questions" are defined as "Any matter on which the Senate is to vote, such as passage of a bill, adoption of an amendment, agreement to a motion, or an appeal." No mention of impeachment proceedings is made. And, as others have pointed out, preceding this one-fifth requirement is crucial language: "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy." Precedents are so thin here, but it is clear the Senate has the power to make its own rules over the trial proceedings. Those rules have historically required a simple majority of support.

That, though, seems wrong to me. First, the Constitution doesn't limit "any questions" to bills, amendments, motions, or appeals (which would mean appeals from procedural rulings). That quote comes from the Senate's web site, which doesn't seem particularly authoritative on this score—and in any event, gives bills, amendments, and the like as such examples ("such as") of "questions." Whether to remove a President from office strikes me as well within the term "any question," and for that matter within the Senate site's phrase "Any matter on which the Senate is to vote."

Second, that "excepting such Parts as may in their Judgment require Secrecy" precedes the one-fifth requirement simply makes clear that (1) secrecy is sometimes allowed, but (2) can be overcome by a one-fifth vote, not by a half-plus-1 vote or any other mechanism.

Third, while article I, section 5 does leave each house with the power to "determine the Rules of its Proceedings," that general power is limited by the specific constraints in the same section:

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….

I take it that we wouldn't think that the Senate could expel a Senator by a 51-49 vote, simply by creating a "Rule[] of its Proceedings" that authorizes that; the "Concurrence of two thirds" needed to "expel a Member" is an express limitation on the Senate's powers, including its powers to make rules for expulsion. Likewise, the One-Fifth Clause is an express limitation on the Senate's powers, including its powers to make rules for operating in secret.

UPDATE: I added the Senate Journal image from the First Congress, just as a vivid illustration of the procedure.

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  1. Professor Volokh,

    I think that the phrase.

    “excepting such Parts as may in their Judgment require Secrecy….”

    applies to each house as a whole, not just to the members who want the matter recorded. So a fifth of the senators can require recording the votes on the journal. But a simple majority can then vote to make the portion of the journal in which the votes are recorded secret. If they did, I suspect courts would not overturn it.

    1. “But a simple majority can then vote to make the portion of the journal in which the votes are recorded secret.”

      Can you walk me through your reasoning? Idk how you got here

      1. “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy”

        Whose Judgement?

        I think the grammarian’s answer is each house, in this case the Senate. The house keeps and publishes, so the house excepts. Which means it’s the house’s judgment what to except. And each house normally acts by majority vote. So that’s how the house exercises judgment.

        The only thing a fifth of the members can do is require entry on the journal. But clearly publishing the journal and making exceptions from publication are separate acts from entering things on it. That’s what the text says. When the Constitution uses two separate words, it means two separate things.

        1. That is, a house can have a secret journal. The enter-on-the journal requirement can be satisfied by entry on the secret journal. Only things entered on the published journal get published. Keeping a written record and publishing that record are separate acts.

        2. ’cause in a roll call vote, for required entry into the journal, no one no the senate floor is making their own list of yeas and neighs…

          1. They can do the vote in secret session. And the majority can discipline senators who reveal what occurs in secret session, as is the case for violating secrecy in any other secret session. If they have a 2/3 majority, they could expel them.

    2. Right. That does seem to be the most technically accurate reading of the section.

      Mr. Derelictionofbooty, the section allows for parts of the journal to go unpublished. Yes, it says votes must be recorded in the journal upon request, but that doesn’t mean the part of the journal has to be published. Two different things.

    3. That was my immediate reaction when I read the section. It clearly allows for parts of the journal remain secret. The yeas and nays will be in the journal upon the insistence of 1/5, but that part of the journal may be kept secret by majority vote. The one-fifth requires recording in the journal, not disclosure.

  2. “Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal”

    OK, as I see it, 1/5 can demand the yeas and nays on an impeachment vote to be entered on the Journal.

    Then a majority can vote that that particular part of the Journal “require[s] Secrecy” and thus that part of the Journal won’t be published.

    Then cross their fingers and hope there aren’t any leaks.

    1. …and in case they’re worried about the wrath of the voters, then from greater caution they can vote to keep secret the vote on keeping the vote secret, and so on ad infinitum, so the public doesn’t have to know who was so eager to suppress the results of the voting.

      Sounds like a plan!

      1. “Sounds like a plan!”

        Yes, if it worked, Trump supporters would be forced to blame every GOP senator since they would know which 20 defected. That couldn’t possibly be bad for GOP senators!

          1. Come on, Bob, you know we’d both be all for secret ballots if a Democrat were to be impeached! It’s only blind partisanship which induces us (and all those Senates who held open votes in past impeachment trials) to oppose this common-sense procedure.

          2. A secret ballot for the impeachment trial vote would be a mess.

            You just know Trump would claim he won save for all those illegal immigrants voting. In other news, Trump gave a speech today at the Economic Club of New York in which he declared daughter Ivanka personally created 14 million new jobs. I bet she never broke a sweat…..

      2. The key there is that a simple majority could vote to keep the impeachment vote secret.

        It wouldn’t be nearly as hard to round up a couple of defectors.

        1. Yes, all you’d need is a few Republican Senators open to offers to join the Democratic party as the Republican party died. It probably wouldn’t do them any good, they’d lose the next Democratic primary anyway.

        2. “It wouldn’t be nearly as hard to round up a couple of defectors.”

          It would taint every GOP senator running for re-election. Messy primary challenges, Trump campaigning against them, potential independant challenges.

          None of them are suicidal in this manner.

    2. Maybe the media can declare all the Senators to be whistleblowers and therefore any leaking of their votes to remove the duly elected President to be unconscionable retaliation.

      1. If the whistleblower had gone to the media, you might have a point.

        As it is, you either don’t know the facts or don’t know what leaking means.

  3. This is the bio of the Politico writer:

    “Juleanna Glover has worked as an adviser for several Republican politicians, including George W. Bush, Dick Cheney, John Ashcroft and Rudy Giuliani, and advised the presidential campaigns of John McCain and Jeb Bush.”

    1. She is probably way out of touch with the current party.

      Does anyone really imagine there are the votes in the GOP Senate majority to depose McConnell and allow this whole pipe dream to get thru the new Majority leader?

  4. This is one of the reasons I love coming to The Volokh Conspiracy. Seriously, this is a pretty arcane topic you’d never find discussed much anywhere else.

    My big takeaway: If 20 Senators want a vote recorded in the Proceedings, it will be. And politicians being what they are, will leak like a sieve.

    The Founders were incredibly insightful men.

  5. Would you need 81 votes in order to force secrecy though? Couldnt politically imperiled Senators just abstain from the vote for secrecy?

  6. The reason why secret ballots are being discussed is the belief that the only reason Republicans will vote against impeachment is they are afraid of the consequences of opposing Donald Trump. This is in turn predicated on the belief that the only reason any Republicans ally with Trump is they’re afraid of him.

    So whatever the legality behind a secret vote, the desire for one is
    largely predicated on the idea that no sane person would ever support something Donald Trump has done and if only we can remove the pressure to conform Republicans will come to their senses and impeach.

    1. “The reason why secret ballots are being discussed is the belief that the only reason Republicans will vote against impeachment is they are afraid of the consequences of opposing Donald Trump.”

      No, you’ve got that subtly wrong: They’re not afraid of Trump. They’re afraid of their own voters, who happen to like Trump.

    2. The reason why secret ballots are being discussed is the belief that the only reason Republicans will vote against impeachment is they are afraid of the consequences of opposing Donald Trump.

      Gotta love it. Some on the left are all “impeachment can be over anything we want. It’s political!” Which means you stand tall before your voters for what you are doing.

      Then try to take the politics out of it so they can’t be held accountable politically, which is to say, by the voters.

    3. It is telling that the argument is not “it should be secret so the Dems can vote their consciences to exonerate the president because he clearly did nothing wrong and the effort is purely partisan.” What is fueling the opposition to a secret vote is the likelihood that the commission of a serious, impeachable offense will be proven at trial, and only pure partisanship can save the president.

      1. I don’t think so; I think it’s pretty much a given that most Republican Senators, being members of the GOPe, really don’t like Trump. He affronts their sensibilities in multiple ways, his getting the nomination and then winning the election challenges the establishment’s role as gatekeeper to office, he’s committing the ultimate sin of actually trying to fulfill campaign promises. (Which makes voters question why THEY don’t.)

        All things being equal they’d love to be rid of him, for reasons that have nothing whatsoever to do with the presumptive impeachment charges. The problem they face is that the voters they rely on to retain office LIKE Trump, rendering removing him without a damned good excuse politically suicidal.

        The attraction of the secret ballot is that they could vote to remove him and then lie to the voters about it. And count on the voters’ doubt to protect them.

  7. I read it as:

    (Each House shall keep a Journal of its Proceedings, and from time to time publish the same), (excepting such Parts as may in their Judgment require Secrecy); (and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal….)

    As in, the names must be entered in the journal at the demand of 1/5th, but the publication thereof is subject to the secrecy exception controlled by majority vote.

    I expect that if there were any precedent on the favored reading it would have been cited, so the only thing we can be sure of is this all dragging on past next November.

  8. Now that the left is getting over its collectivist hissy fit over the latest Trump “Orange Man Bad” outrage, it is waking up to a bad hangover of Impeachment Regret. They realize that Hunter Biden is most likely a criminal and his daddy was using his influence to cover up for his kiddie behaving badly. And they have already blown their load to also realize that impeachment didn’t move the outrage needle any further then the already existing background anti-Trump static.

    Wouldn’t be surprised if at this point the House converts articles of impeachment into some censure resolution in an attempt to save face.

    1. If we wanted really stupid talk radio talking points from awful human beings, we could listen to really stupid talk radio hosts, Jimmy.

      1. Nice deflection from the real issue. There is nothing here over which a President of the United States can be impeached. Absolutely nothing. (Other than the banal argument that the House and Senate define the rules and therefore can in theory impeach the President on anything they like).

        I hope though the Dems keep pushing their treason. It is just the next logical step in all their seditious activities since the election. History is going to judge them very poorly.

      2. Sad to see you go down the TDS rabbit hole 🙁

        1. Noting JtD’s pure ipse dixit isn’t TDS.

  9. If they truly believe they are justified in their vote, then it their duty to vote so publicly, regardless of how it affects their prospects for reelection.

    Secret votes by legislatures are as repugnant as secret courts.

    1. “Secret votes by legislatures are as repugnant as secret courts.”

      Indeed. What next? Secret votes for declarations of war? Budgets? Everything?

      I suppose you could make a case for secret votes – perhaps to approve a secret treaty to co-develop the A-bomb with the British in 1943 or something. But doing so merely to avoid the displeasure of the voters is about as far from democratic principles as you can get. Conducting the public business in public, precisely so the voters can base future votes on that conduct is the very core of democracy.

      1. Most of them only believe in Democracy when Democracy agrees with them.
        If Democracy disagrees then Democracy is wrong.

    2. Yes. It’s a truly insane idea — a secret vote to shield senators from the wrath of their own voters!!!??? WTF?

  10. “Rule IV, Paragraph l(d)

    “[Journal of Proceedings of Impeachment Trial]

    “The legislative, the executive, the confidential legislative proceedings, and the proceedings when sitting as a Court of Impeachment, shall each be recorded in a separate book.”

    https://www.govinfo.gov/content/pkg/GPO-RIDDICK-1992/pdf/GPO-RIDDICK-1992-69.pdf

    (p. 866)

  11. Another problem, maybe.

    Article 1, Section 5 is pretty clear, except that some folks here have blurred it a bit.

    Also clear? Article 1, Section 3: “The Senate shall have the sole Power to try all Impeachments.” So what authority other than the Senate can make that decision? If the Senate decides secrecy is the way to go, does the Supreme Court (or anyone), have Constitutional power to set an impeachment aside for doing it wrong?

    Plus, of course, a little farther down in Article 1, Section 3: “And no Person shall be convicted without the Concurrence of two-thirds of the Members present.” Seems like that adds at least a bit of weight on behalf of a non-secret vote. There would be considerable confusion and hell to pay if, after a secret vote, senators started lying about how they had voted, and no one could discern from what they said that the two-thirds requirement had actually been met.

    1. “If the Senate decides secrecy is the way to go, does the Supreme Court (or anyone), have Constitutional power to set an impeachment aside for doing it wrong?”

      I’d say no, because judicial review doesn’t apply to situations where the Senate is itself acting as a court. In such situations, challenges to the Senate’s power would be considered by the Senate itself, just as the Supreme Court decides questions of the Supreme Court’s power.

      The only questions, IMHO, to ask on judicial review are: (a) Did the House vote articles of impeachment, (b) did the Senate convict on at least one of the articles, and (c) was the punishment constitutionally authorized (i. e., limited to restrictions on officeholding rights)?

      1. Are you forgetting the Chief Justice presides over the trial and it’s probably up to him to make such a ruling, perhaps subject to reversal by the entire Senate.

        1. The question I addressed was:

          “If the Senate decides secrecy is the way to go, does the Supreme Court (or anyone), have Constitutional power to set an impeachment aside for doing it wrong?”

      2. If this interpretation is correct the Supreme Court wouldn’t overturn the impeachment, they’d merely require publishing the vote, which shouldn’t be difficult for them to accomplish in the face of refusal since the Chief Justice presides over the trial.

        1. Presumably the Supreme Court could indeed set aside an impeachment/removal from office for ‘doing it wrong’, but doing it wrong would have to be something like not getting 2/3 of the votes and declaring the president removed from office. Perhaps some other forms of skulduggery would also qualify to overturn the trial, I’m not sure, but not merely voting in secret.

  12. While this is enlightening about the public articles of the Constitution, how do we know what the secret Trump rules codicil of the Constitution says?

    I’m pretty sure it says a secret vote is mandatory.

    To sum it up, we have secret witnesses that can’t be heard, we have secret hearings that can’t be disclosed, we have secret testimony that can’t be heard, and now we need a secret vote to decide on all the secret evidence.

  13. If you really want to get into the weeds, and McConnell is on board with removing Trump dirty, and doesn’t care if it means his retirement, there are ways.

    First, conviction is by 2/3 vote of those PRESENT. Convene the Senate with few enough Republicans present, and Trump can be convicted by only Democratic Senators.

    Second, with few enough Republicans present, there wouldn’t be enough to force a recorded vote.

    At this point we’re still nominally within the rules, so Roberts probably wouldn’t object.

    Third, once you’re not bothering with a recorded vote, you can even skip the bare majority, and just operate by voice votes to avoid any roll call exposing the absence of a quorum. Yes, the Senate has a history of doing this sort of thing, taking actions with as few as three members present. Bob Dole was notorious for cooperating with the Democrats in doing this.

    Now, Roberts would probably draw the line at something like that, as well as complain about being rousted out of bed at 2AM.

    So, they do it without him present, and count on him declaring it a political matter, non judiciable. They’d have the enrolled bill rule on their side. I think there’s a good chance he’d vote to let them get away with it, in return for being invited to all the good parties.

    1. First, conviction is by 2/3 vote of those PRESENT. Convene the Senate with few enough Republicans present, and Trump can be convicted by only Democratic Senators.

      Let’s not give Antifa and the peaceful Left any ideas.

      1. Rep. Scalise will tell you it’s a bit late for them to not be getting that idea.

  14. Would the Chief Justice, presiding over the trial, allow a secret vote?
    Isnt that the only reason the CJ is involved? Rule on housekeeping items like this?

    President Trump would refuse to leave office, as there exists no demonstrable proof, 2/3 voted for impeachment.

    Now what? Federal Marshall’s, in a gun fight with Secret Service? What law enforcement is under the Article I powers of Congress? What law enforcement is under Article II powers of the Executive?
    Which branch of govt has more guns?

    The peaceful transfer of power used to be the Hallmark of the United States. Transparency is why. Even entertaining talk of secret impeachment votes is seditious.

    We haven’t even gotten to the peoples response.

    1. Because each house controls the rules of its own proceedings. Jury votes are secret. It’s not as if there is no precedent for secret votes in trials. If the Senate wants to conduct deliberations like a jury, that’s its business.

      1. Jury votes are secret.

        Juries are also populated by unelected private citizens.

        1. The fact you think the Senate should do something doesn’t mean it has to.

    2. The whole argument the past few weeks has been about doing this in the open so you can gain the peoples’ confidence no funny business is going on, and they can trust the results of such a serious process to overturn their vote. That’s also the point of a supermajority in the senate, to get buy in from the many of the president’s supporters, and not just opposition, to show it’s a real problem and not just politics.

      The reason for secret ballots in normal elections is precisely so voters can’t be held accountable or intimidated. That’s the opposite of what you want in this process.

      I’ve got hundreds of examples around the world and in recent history for those who like government operating in secret and telling you the results later, to go live in.

      1. “The whole argument the past few weeks has been about doing this in the open so you can gain the peoples’ confidence no funny business is going on, and they can trust the results of such a serious process to overturn their vote.”

        Yeah, you didn’t actually think they meant any of that, did you? They just want to get rid of Trump, literally no matter what it takes.

      2. But that’s a policy argument that it would be best if Congress act a certain way, not a legal argument that it must act that way even if it doesn’t want to.

    3. “Would the Chief Justice, presiding over the trial, allow a secret vote?”

      He is going to defer to the Senate majority.

      1. That’s my take on it: So long as they don’t do anything obviously unconstitutional, like try to hold votes without a quorum present, or convict Trump on a majority vote, he’s just going to let them do what they want.

        And he’s going to be pretty lenient about what constitutes that quorum “being present”, too.

  15. Professor Volokh,

    Congress has maintained a secret journal from its inception. It has passed secret laws before, and secret laws get entered on the secret journal. They have to be because you need a written record of laws.

    What you’re suggesting here seems to go against established practice as well as what the text says. If laws can be entered on the secret journal, why in the world can’t impeachment votes be?

    https://www.baumanrarebooks.com/rare-books/constitution-madison-james/secret-journals-of-the-acts-and-proceedings-of-congress-with-journal-acts–/77570.aspx

    1. Seems irrelevant to me unless you have some information that 1/5 of the senators voted to to have the votes recorded.

      1. The issue here is Professor Volokh is arguing that 1/5 of senators can force the yeahs and nays to be publicized. But the text says only that 1/5 of votes forces recording the yeahs and nays on the journal.

        And the longstanding practice of secret journals means that recording on the journal and making public are two separate acts. Doing one does not mean doing the other. If 1/5 of the senators can force recording The yeahs and maya on the journal, the senate can then vote to exercise its judgment to keep the portion of the journal containing the vote secret. And this vote is a separate vote. It can be done with a simple majority of the Senators.

  16. I think even if it’s legal to have a secret ballot, it’s a horrible idea. This process has already been shielded in entirely too much secrecy. If we’re going to remove a sitting President from office, the entire proceedings AND vote should be public. The Senators and Representatives aren’t exercising their personal vendetta against Trump, they’re acting as OUR representatives and we have a right to know what’s going on.

  17. How do we know a secret vote would work against Trump? Republican Senators could expect a backlash against Republicans in general and general damage to Relublican election prospects if Trump is removed even if there votes aren’t specifically known – assuming the voting record doesn’t leak anyway.

    If it’s secret someone like Susan Collins could vote against removal and then go on TV saying, ‘I voted to remove Trump, but obviously the evidence wasn’t enough to convince all my colleagues and he’s still in office. So let’s move on to the current election.’ Without having to face Democrats accusing her of siding with a criminal or Republicans holding her responsible for removing their President.

    1. We know it would work against Trump, because Republican Senators (Who are the majority of the chamber.) need the votes of Republicans, not Democrats, to get reelected. And Trump is very popular with Republicans.

  18. Though all it takes is one Senator out of a hundred who sees political advantage in leaking the vote and/or feels the public has a right to know the vote to leak it, so it seems likely it would be leaked and the voters would expect it to be leaked.

    1. It’s not like this is some mostly* non-partisan secret project or espionage bill or something where there’s little advantage to leaking and there’s pretty clear and solid reason for keeping it secret. (And that kind of thing can still get leaked, but at least you wouldn’t assume it would be immediately leaked as a matter of course)

      *nothing is completely non-partisan, but some things are way on the other side of the spectrum from removing the President from office.

    2. If you actually got 81 Senators behind it, you could just give Senators two colored balls and have them vote by dropping a ball in a sealed urn and the other ball in a sealed discard urn. IIRC, that’s how juries in classical Athens voted. Then: no leaks, because no one would know how any other individual Senator voted.

      1. Although there might be some questions about why there were 103 black balls in the convict urn…

  19. Even under your reading, the threshold isn’t 81 Senators, the threshold is 4/5 of those present.

    Quorum for the Senate is a simple majority – 51 members.

    If 51 members are present only 41 need to support making the vote secret.

  20. Whatever the law may be, I suspect the real world answer is that the Senate will do whatever a majority of the Senate wishes to do, and the chances for judicial review are between slim and none.

Please to post comments

Instant reaction to DACA Case: At Least Five Votes that Rescission Not Reviewable

Given the six-month wind-down, the policy would remain intact until after the inauguration.

|

I attended oral arguments today in the DACA case. I will have much more to say about the proceedings, as well as the process to get there, in due time. For now, I will briefly offer my prediction: there are at least five votes to hold that the DACA rescission is not reviewable. I say at least five, because Justice Kagan did not seem averse to that analysis. Indeed, a decision that the rescission is not reviewable could lead to the conclusion that DACA itself is not reviewable. SG Francisco tried to thread the needle by saying DACA was reviewable, but the decision was not. Justice Kagan seemed skeptical of this argument. The specific contours of that ruling would become important if President Trump loses re-election.

This type of ruling would be the best-case loss for the Dreamers. Given the 30-day period following remand, followed by a six-month wind-down period, DACA would remain in effect until after the inauguration. In theory, at least, a Democratic president could simply reinstitute the policy on January 20, 2021. At that point, we would be back at square one, and Texas would sue to block DACA.

The Court already ducked the merits of deferred action once in 2016. It could do so again here. And it may take another two years before the case winds its way back to the Court. At which point, the reliance interests would become even greater than they are today.

Update (11/13/19): The New York Times quotes Mark Krikorian, a prominent critic of DACA. He suggests that the effective date of the rescission could be extended further in light of the election.

Mark Krikorian, an immigration restrictionist and the executive director for the Center for Immigration Studies, said that Mr. Trump could theoretically defer making a decision during the election year. With such a move, Mr. Trump's White House could say the administration will stop processing renewals of DACA status so that it does not kick in until after the election.

"In the middle of an election year, I think the White House can genuinely say that this is not a good time to broker an immigration deal, not for anyone," Mr. Krikorian said. "That's a plausible position for them that may limit the political challenge that they face" by ending the program immediately.

I strongly doubt any changes will be made prior to January 20, 2021.

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  1. If DACA is a policy regarding enforcement priorities, like it appears to be, then DACA should be subject to rescission. There’s no good reason to end the policy, and ending it is immoral and unjust, but it can be ended just the same. And if you’re looking to make an immoral and unjust policy decision you could not ask for a better administration.

    1. There are a lot of good reasons to end the policy. The main one being preventing more “citizen” children from being born here.

      1. There’s a ton of things offensive about this comment, but the putting of “citizen” in scare quotes is perhaps the worst thing about them.

        Those children you refer to, born in the United States to Dreamers, are citizens, full stop. Not “citizens”. Citizens. The text and history of the Fourteenth Amendment, and controlling US Supreme Court caselaw, holds that. And they have much to contribute to this country.

        1. Yup, I’m sure they’ll contribute to gang crime, school behavioral problems, drug dealing, welfare use, and a myriad of other social ills endemic to Latin Americans.

          1. You’re so bad at being an American.

            1. Have you taken a look in the mirror?

            2. That is why his thinking has been a loser (over time, at least) throughout American history, in connection with successive and failed waves of intolerance and ignorance aimed at enough groups of Americans that the targets of historical intolerance substantially outnumber the vestigial bigots.

              The people who attacked Italians, Jews, blacks, the Irish, agnostics, gays, Asians, Catholics, women, eastern Europeans, Hispanics, Muslims, atheists, other Asians, other Hispanics, and other Americans were lousy people. This latest batch of bigots seems nothing special, its reliance on the charms, integrity, and insights of Donald J. Trump notwithstanding.

              The Dreamers will stay. The bigots will lose. Then, the record indicates, they will be replaced by another group of doomed bigots somewhere down the road.

              1. “The people who attacked Italians, Jews, blacks, the Irish, agnostics, gays, Asians, Catholics, women, eastern Europeans, Hispanics, Muslims, atheists, other Asians, other Hispanics, and other Americans were lousy people. ”

                1. Except when Dilan and Arthur attack Catholics. Then it’s OK.

                2. And to make up for all this, we have racial preference for… blacks and Hispanics.

                1. I don’t attack Catholics.

                  I DO attack religious TEACHINGS, which are factual claims. Is it bigotry to deny the existence of Xenu?

            3. Does being an american mean regurgitating bromides about diversity and paying fealty to an Emma Lazarus poem?

              1. Don’t think I’m talking about conservatives generally. This guy is special.

                Apart from his eugenics and wishing for a civil war, he wants to keep women from voting,

              2. Well for most of us who are Americans by dint of being born here, it means being born here. That’s it.

        2. You might want to check your facts on that…

          1. Oh, I have.

    2. Calling it immoral – I respect your opinion but I think there’s some culpability on Obama for making this decision without the legislature; to hang the future of people on so brittle and fickle a method as prosecutorial discretion makes it virtually certain that they are being set up to be let down in the future. I often chaff at selective enforcement of the law because it doesn’t create an environment where people can operate on a predictable landscape. The right method for Obama was to get a bill through Congress and if he can’t do that, lay the blame at Congress’ feet and move on. The idea that end runs around the process are validated because the ends justify the means get you where we are today. It’s a bit of an intellectual cop-out to say the decision to end DACA is immoral without examining (morally or even procedurally) the setup for failure that was its origin.

      1. OK. So say that since Obama couldn’t get it through Congress it was wrong of him to implement it as he did. Why, exactly was it certain that the beneficiaries would face a letdown? Was it a sure thing that the country would elect a xenophobic liar who’s political strategy would be to play to anti-Hispanic bigotry?

        And whatever Obama did or didn’t do, how does that affect our judgment as to the immorality of the rescission? Not at all, I’d say. Obama’s actions are history – moral sunk costs.

        1. Ignoring the invective, you ask “Why, exactly was it certain that the beneficiaries would face a letdown?”
          Because politicians have different priorities, it is certain that the discretionary judgments made by one executive will not be the same as all successive executives. That’s a given as reliable as the sun rising. The reason our system of governance specifies that the the proper law-making process goes through legislative review and surmounts hurdles of a majority vote is so they are more fully considered and not easily undone when the whims of the executive (or the House) changes.
          Next you ask, “[However the first discretionary decision was made] how does that affect our judgement [about] the recission?”. Because making the first decision was reckless – both in respect to the process of law-making but especially with respect to those whose lives it impacted. It’s basically making people a promise the Executive was in no position to make or keep. As if you promised me that the price of gold will always go up, so I can buy in at any time and always be certain of a positive return. You’re in no position to make that promise, so if I base my life on that investment certainty, I will be let down. Am I culpable for believing you? Yes. Are you culpable for making the promise? Probably, yes, if you assume that people (wrongly, in this case) endow you with more credibility than you have.

          1. You explain why it was possible, not why it was certain, that they would face a letdown.

            Yes, politicians have different priorities, but that hardly guarantees that a future President will rescind DACA. Which of the candidates in the 2016 Republican primaries would have done that if elected?

      2. Calling it immoral – I respect your opinion but I think there’s some culpability on Obama for making this decision without the legislature;…

        Well, get the history right. DACA wasn’t intended to be a permanent fix. It was intended to address an immediate issue that could be further resolved and codified through a bipartisan immigration reform bill. He was trying to create political room to maneuver and perhaps set a path for dealing with the Dreamers more permanently.

        The fact that the Republicans chose to go all-in on an obstruction strategy rather than work with Obama has more to do with why we’re here now than Obama’s initial decision.

        1. In political pejorative, that’s known as political blackmail or gambling with people’s lives. If that was the “initial decision” as you say, it’s hard to turn a blind eye to the role it played in getting us to where we are now.

          1. In political pejorative, that’s known as political blackmail or gambling with people’s lives.

            No, “political blackmail” was trying to force the issue through Congress by suspending the program, as Trump did, and then repeatedly upping his demands for concessions on legal immigration in order to sign off on a DACA fix.

            Obama wasn’t gambling with anyone’s lives. He took a group of people living with great uncertainty and no options in their ostensible “home” countries and tried to give them a degree of comfort while he tried (and failed) to negotiate a fix with Congress.

        2. The Republicans didn’t owe Obama changing the INA to suit his needs. They were under no obligation to change the law and had every right to expect the President to enforce it as written.

          What other laws do you think no longer matter because the President doesn’t like them?

          1. The Republicans didn’t owe Obama changing the INA to suit his needs.

            The Republicans have been wanting immigration reform in various guises for years, and in fact could have negotiated something as part of a bipartisan deal with Obama and congressional Democrats, had they wanted to do so.

            They chose not to because they decided that spending the Obama years campaigning against him (and later, Hillary) was going to be a more successful electoral strategy for them than, say, governing. They sought to deprive him of any “wins” and instead focused on “repealing” Obamacare, among other things. That this proved successful for them is a lot of the reason why Democrats in Congress (and McConnell, in the Senate) are behaving now as they are.

            1. “The Republicans have been wanting immigration reform in various guises for years, ”

              No, Republican officeholders have wanted it for years. The reason they never went ahead with it is because every time their voters got wind of it, they were informed that they’d be voting to retire.

        3. “It was intended to address an immediate issue that could be further resolved and codified through a bipartisan immigration reform bill. ”

          And why would Obama expect that bipartisan immigration reform bill, when he only went ahead with DACA after it had been rejected by Congress? That’s not exactly a hint you should expect legislation.

          Unless Caphon’s point about blackmail explains it.

          1. Keep in mind that “rejected by Congress” here means “4-5 votes short of overcoming Senate filibuster”.

      3. “…to hang the future of people on so brittle and fickle a method…”

        The silliness of the argument is the counterfactual is not “with[] the legislature” enacting DACA. It’s that there wouldn’t be DACA in the first place. The people in limbo would rather be in limbo than have the matter settled against them in the first place.

        Congress can repeal its own actions too. Does that mean legislation is similarly “brittle and fickle [] method”?

    3. How is ending DACA immoral? Unlawfully putting your children is that situation is what is immoral. Rewarding that behavior while punishing those who follow the law creates a moral hazard. There’s no moral obligation or responsibility to an economic “refugee,” and that is overwhelmingly the situation we’re discussing.

      1. Unlawfully putting your children is that situation is what is immoral.

        What is immoral about wanting a better life for you and your children?

        1. Because they want that “better life” at our expense. These are the least proud people on earth.

        2. What do you say about a robber who robs a bank for “his children”

      2. “Unlawfully putting your children is that situation is what is immoral.”

        Certainly it would have been more moral for the parents to remain in a third-world slum, subjecting their children to a lifetime of suffering.

        Is there anyone here willing to say they would never break the law to help their children? Y’all are so fucking weird.

    4. … an immoral and unjust policy decision …

      Would you be kind enough to articulate the moral principle(s) that make it “immoral” and the legal principle(s) that make it “unjust”?

      1. Uprooting a group of people who have lived here just about their entire conscious lives and kicking them out just to show you’re tough is immoral.

        It’s instrumentalizing other people for your own agenda, so it’s anti-Kantian. It includes high costs to them, negligible cost to us, so it’s anti-utilitarian. It shows no quality of mercy, so it’s not values-morality/Christian.

        1. Uprooting a group of people who have lived here just about their entire conscious lives and kicking them out just to show you’re tough is immoral.

          No it is not. Just because they came here didn’t give them the right to stay. And Trump offered to legalize them and the Democrats refused. If letting them stay is that important, the Democrats should have been willing to give something to get that.

          1. They were willing, but Trump kept backing out.

          2. Actually, it is immoral.

            Sarcastro’s comment covers it very well.

            To harm others is prima facie immoral unless you have a very sound justification.

            You don’t have one.

          3. “Just because they came here didn’t give them the right to stay.”

            That’s what the discussion is about. Why do you think they shouldn’t be allowed to stay? Do you have a moral argument for kicking them out, that doesn’t involve punishing them for the sins of their parents?

            “…the Democrats should have been willing to give something to get that.”

            Like E-Verify?

            1. Yes, my moral argument is that my children are more important than foreigners, and these people are genetically unintelligent and will be a forever drain on America.

              1. “Yes, my moral argument is that my children are more important than foreigners…”

                Well this “moral” argument supports the foreigners, too.

                “…and these people are genetically unintelligent…”

                Sir, you’re an abject moron. You better pray to God moral and social rules don’t start turning against the dumb.

                1. Truth hurt? I suggest you read the Bell Curve and the myriad of other literature on this subject.

                  1. The literature on the subject of your abject stupidity is in the Bell Curve? I’ve read it, I don’t remember the chapter on how fucking dumb you are.

        2. … kicking them out just to show you’re tough is immoral.

          1. You are not articulating a moral principle; you are simply begging the question.
          2. If someone enters my home without my permission, is my desire to have him removed simply showing that I’m tough?

          1. A country isn’t a home that the President lives in by himself.

            I note that both of you skipped my actual invocation of moral theories.

            1. I note that both of you skipped my actual invocation of moral theories.

              Would you be kind enough to articulate the principles upon which those moral theories are based again?

              1. You want to know the principles behind Kant and Christianity?

                1. Kant and Christianity

                  Are you suggesting that Kant and Christianity assert that I have a right to enter (and remain in) someone else’s home without permission?

                  Do Kant and Christianity assert that rewarding past lawlessness (an thereby encouraging future lawlessness) is a virtue?

                  1. As Sarcastro already said, a nation isn’t a house.

                  2. “Are you suggesting that Kant and Christianity assert that I have a right to enter (and remain in) someone else’s home without permission?”

                    We don’t need to get into Kant and Christianity. The moral question is whether you should open your house to people in need. If you think the answer is definitely no, explain why.

                    1. There’s also a question of what level of “need” is relevant. Something like 95% of the population of the Earth is poorer than the average American; Even our poorest 5 percent group are wealthier on average than 68% of the world’s population.

                      So you can’t just define being in “need” on the basis of being poor by American standards,, that’s practically everyone.

                    2. @Brett,

                      This is a coherent argument. It certainly confronts, directly, a claim that America should open its borders to everyone in the world. I don’t think it persuasively rebuts some relief for smaller, manageable classes of people who had no moral agency in the alleged illegal conduct, like very young children brought here.

                2. Kant and Christianity

                  Are you suggesting that Kant and Christianity assert that I have a right to enter (and remain in) someone else’s home without permission?

                  Do Kant and Christianity assert that rewarding past lawlessness (and thereby encouraging future lawlessness) is a virtue?

          2. “If someone enters my home without my permission…”

            If you’re talking about a child abandoned in your house by another, I would hope you’d try and help the child before simply placing him or her on the sidewalk.

            1. I would hope you’d try and help the child before simply placing him or her on the sidewalk.

              I’d call you. Apparently, your home is large enough to accommodate an infinite number of “people in need.” (And, I gather, you have already invited many in.)

              1. It is not the case that a person who is morally obligated to take care of a child is also morally obligated to allow an infinite number of people in need. That’s an especially senseless slippery slope where, as here, the issue is whether we should expend resources to kick people out of the country that the overwhelming majority of us don’t want out of the country in any event. Your argument is that if you own 1 of 10 units in an apartment complex, you apparently have a moral right to expel a person from common areas even if the other 9 want them there. So construct the moral argument for that.

                1. the overwhelming majority of us don’t want out of the country in any event

                  The question has never appeared on any of my ballots. When were “the overwhelming majority of us” ever asked to vote on that question?

                  Your argument is that if you own 1 of 10 units in an apartment complex, you apparently have a moral right to expel a person from common areas even if the other 9 want them there.

                  If “the overwhelming majority of us” don’t want “to expel a person from common areas,” our agent (Congress) should have no problem saying so.

                  1. “When were “the overwhelming majority of us” ever asked to vote on that question?”

                    Well President Obama went up for reelection months after initiating DACA. Then we had several congressional elections since then. And then we had an election for President Trump.

                    “If “the overwhelming majority of us” don’t want “to expel a person from common areas,” our agent (Congress) should have no problem saying so.”

                    They have. Republicans and Democrats have both submitted legislation that has majority approval in both houses providing paths to citizenship for people who were brought into the country as children.

        3. “kicking them out just to show you’re tough ”

          That is not part of DACA opposition at all.

          If a premise is wrong, the whole argument falls. QED.

          1. That is not part of DACA opposition at all.

            The point of the opposition by Trump is to pander to bigotry for political gain.

            It really is that simple.

          2. It absolutely is. Indeed, most people who oppose the Dreamers make a deterrence argument.

            1. The tiny portion of people who oppose Dreamers (~ 10%, only 22% of Republicans) suggests that the real reason is more sinister. “Talking tough” and “deterrence” is being fair to that group.

              1. “deterrence”

                Does rewarding past lawlessness encourage future lawlessness? Is doing the opposite “more sinister”?

                1. The “more sinister” is tribal racism. The importance of deterrence does not justify every deterrent measure. There’s a proportionality requirement, too, and it gets checked against how shitty you’re willing to be. Some people’s selective willingness to be shitty can be adequately explained by racism. (Though I think the true racists are few and far between.)

                  1. Some people’s selective willingness to be shitty can be adequately explained by racism.

                    My willingness to be “shitty” is not “selective.” If someone from my tribe butts in line ahead of someone from a different tribe, he’s the one who should be shown the back of the line.

                    If you can’t construct a rational argument, claim “racism.”

                    1. We’re not talking about line-cutters. We’re talking about children who were brought here without agency in that decision. The people willing to be shitty to kids is thankfully so small that I can wonder whether it’s just hateful spite.

                    2. We’re talking about children who were brought here without agency in that decision.

                      If my parent steals money and uses that money to purchase a saving bond in my name, would it be “hateful spite” to take that bond away from me, because I was “without agency” in the lawlessness of which I was the beneficiary?

                      I ask again: Does rewarding past lawlessness tend to encourage future lawlessness?

    5. If you’re looking for immorality, you should be looking at the DACA parents who dragged themselves and their children illegally into a foreign country, evading its democratically enacted laws, and thereby condemned their children to a life in the shadows.

      1. Have you considered that for some of those parents, “a life in the shadows” in the US is preferable to whatever life they were fleeing from? And that, in fact, many of those children are better off now than they would have been had their parents followed American immigration laws?

    6. “Prosecutorial discretion” based on age and race/national origin seems rather illegal to me, even ignoring the whole “ignore an entire class of crimes” conflicting with “faithfully execute the laws” bit.

      But on a different front, DACA implemented a work license program, employs people to maintain this program, rents space to house these workers, hires folks to work with the illegals to enroll them in the program or work with them, and so on.

      All of this is done without funding approval from Congress. That’s unconstitutional.

    7. OtisAH wrote: “There’s no good reason to end the policy”

      And your reasoning is? How about the fact that it does not — and can not — offer permanent refuge in the US? How about the fact that DACA, despite its intended purpose (one I agree with) is one of myriad actions by Congress, the President, and yes the Courts to legalize illegal immigration? How about the fact that the existence of the judicial hold on it keeps Congress from having to actually pass a permanent solution that gives Dreamers their green cards and a path toward citizenship?

      And don’t go on about how “this” administration is all at fault for the DACA debacle. The holy Democrats basically threw the Dreamers under the bus rather than have to soil themselves by fronting a stupid wall for Trump. They’re absolutely part of the problem.

      No good reason? Balderdash!

    8. Congress has been sucking their thumb for what? 4 years? Changes in imigration status of aliens is an article I power.

  2. One can never be certain about law (ironically) but how we could listen to months of narrative about how one executive can implement a discretionary policy and it not be subject to revocation by the next is beyond me – regardless of the subject of such discretion. It seems rather obvious on the face of it. Presidents do not create law – but if they do, as they do so often, it must be the most brittle and flimsy version of law. Looking forward to reading the transcript of arguments today.

      1. Thanks for the citation. I just finished reading some and scanning some of the transcript.

    1. I guess the Democrats want Democratic party presidents to be able to issue executive orders that become law and can only be revoked by legislation passed by a Democratic party majority legislature. Republican president executive orders and legislation by Republican majority legislatures will be legal nullities void ab initio

  3. Haven’t followed . . . is the “six month wind down” something the administration created, that they could simply nix to end DACA immediately if the ruling goes as Blackman predicts?

    1. I suspect it’s something on the part of the administration, just to give the DACA people some time to make some effort to regularize their status or make travel plans.

      And to give Congress some time to move off their asses. Apparently they’re not going to pass an actual bill to legalize the “dreamers” without poison pill amendments until the clock starts ticking on their deportation.

      1. Brett ,

        They are not going to pass a bill unless Trump says he’ll support it. And he’s not going to support a clean bill.

        It’s not the pro-DACA people who are putting in poison pills. It’s Trump.

        1. They are absolutely putting in poison pills. There are around 800,000 DACA people, but the Democrats keep trying to sneak in 3-4 million (at least), in exchange for virtually nothing, and they use the more vague term “Dreamers” as obfuscation. Their entire aim here is to achieve permanent electoral advantage, of course, so they can advance the rest of their transformative agenda.

          I know you can just as easily say Trump is putting in poison pills because he wants to build the wall, etc. The measures he wants are poison to Democrats of course for the same reason stated above.

          But that’s why it’s called a trade-off. The American people’s support for DACA needs to be viewed in context. The American people support a trade-off. Point by point, I can show you that the things Trump has proposed on immigration as part of a grand bargain, which the media likes to label “far right” and such, are supported by the American people, sometimes 60%, 70%, 80%, and higher. And the polls show Americans support all of this as together as part of a grand bargain.

          Of course, the problem standing in the way of that isn’t just Democrats. Not at all. It’s the Republicans too, it’s the big business lobby, it’s virtually every influential interest aligned against the American people. So what Trump gets from the point persons in this negotiation who happen to be Democrats, is “My offer is this: nothing.” They intend to have it all and not give one inch.

          It’s been clear for a long time that the only shot at success for the real America First agenda is if he wins a second term.

          1. Sounds like you need to talk to that liberal softie Brett about wanting a clean bill.

          2. There are around 800,000 DACA people, but the Democrats keep trying to sneak in 3-4 million (at least),…

            The 3-4 million you’re speaking of, of course, are other people brought to the U.S. as children and with no meaningful connection to their home countries, but arrived too late or were too old for DACA. That’s why they get lumped together with the rest of the “Dreamers.” It’s the same type of people, just outside Obama’s original window.

            Calling them a “poison pill” is actually the “poison pill.” That is, if you’re drawing the line at just existing DACA recipients, you’re arbitrarily cutting off relief for no good reason other than to keep the numbers down.

            …, in exchange for virtually nothing,…

            What is it that you think Republicans wanted, “in exchange?” The Dreamer fixes that were floated already came with tons of caveats and limitations. Some of the pathways to citizenship were ridiculously, absurdly long; penalties demanded were cost prohibitive; and then there would be the non-negotiable bars of public benefits.

            Again, you’re just sort of re-framing things to ignore the nature and extent of Republican demands. The Dreamer fixes were compromised. Republicans wanted more – more restrictions on asylum and refugee migration, more limitations on visas, more money for the wall, etc. And Democrats were willing to give some of that, too – even though it was bad policy!

            It’s been clear for a long time that the only shot at success for the real America First agenda is if he wins a second term.

            It’s bizarre to me that anyone thinks that Trump will have any reason to pursue anything other than a Trump First agenda if he’s re-elected. Surely we know enough about him now than to believe he’ll do anything for the U.S. if he gets another four years.

        2. “And he’s not going to support a clean bill.”

          Why should he, or any other President, support a “clean” bill? The need for DACA is a symptom of an underlying problem. Shouldn’t the bill fix the problem? Build a wall, streamline the process for coming hear legally, etc.

        3. Bernard,

          Any immigration reform that lets in the DACAs must include greater immigration enforcement.

          Otherwise, it’s just an incentive for future illegal immigration. Illegally immigrate, skip the queue, get legalized. Good for everyone. Except poor Americans who find their wages suppressed.

          1. Any immigration reform that lets in the DACAs must include greater immigration enforcement.

            Which the Democrats have offered.

            1. Yes, in much the same way they offered it in ’86: In a form which would be easy to avoid actually delivering on. Authorization for spending down the road, not appropriations for spending now.

              Charlie Brown isn’t actually obligated to try to kick that football, you know. He’s allowed to take into account it’s Lucy holding it, and insist she set it down and back away before kicking.

            2. Not realistically.

              Let’s be honest here. If Democrats had offered funding for Trump’s wall in exchange for DACA being written into law, it would have been a deal both could have accepted easily.

              But Democrats couldn’t accept that. They couldn’t accept funding Trump’s wall (beyond a symbolic dollar). They couldn’t give him the “win” in exchange for DACA. So…here we are.

        4. I love how Democrats demand “clean” bills for their priorities, but reject them for others.

  4. So, help me out. Is the Court setting up a situation they will just follow the lead of the elected branches? If Trump is re-elected, expect DACA to go away via some motivated reasoning, if he loses, expect the Courts to say it’s good to go?

    1. So, help me out.

      As Caphon noted above, the issue is whether “one executive can implement a discretionary policy and it not be subject to revocation by the next … regardless of the subject of such discretion.”

  5. There are really only 3 logically consistent positions, only 2 have been made:

    1. DACA did nothing, thus no one has standing to challenge changes to DACA.

    2. DACA did something, that something was outside the scope of the law, thus it is illegal.

    3. (Mystery argument not yet made). DACA did something, there is a buried portion of the US Code that no party has yet cited that makes this legal, and all previous administrations prior to Obama had been very confused about the law.

    1. One of your three “logically consistent” arguments is a mystery argument that hasn’t been made yet? That’s… something.

    2. 4. DACA is illegal because the President does not have the authority to offer benefits to noncitizens which the law reserves for those who are in the country legally to those who are in the country illegally as “prosecutorial discretion” and even if the courts do not strike it down, because it was established by one President via executive order without going through the administrative procedure process, another President should be able to end it via just an executive order without going through the administrative procedure process.

  6. This was a good read two years ago, and remains so.

    http://www.anncoulter.com/columns/2017-11-15.html

  7. Prof. Blackman and I agree on something.
    That’s my take as well.

  8. I thought that the administration’s positions were not just wrong, but actually impossible to defend. Now I hear that there are at least five votes for ending the program.

    Clearly, the only reasonable response is some sort of complex conspiracy theory.

    1. The two aren’t mutually exclusive or, at least, not as mutually exclusive as it sounds. “Recission is non-reviewable, but if it was your arguments are shit” is a coherent position.

    2. The response is you are an idiot who has no understanding of how the rule of law works and seem to think that one President has the power to do something that another does not based on your opinion of each President.

    3. “five votes for ending the program” is different than “five votes deciding the decision isn’t (or is) reviewable by the Court”. The President’s decision to end the program may follow from the Court deciding the can’t review it, or from the Court deciding it can but also finding the decision is within the President’s purview.

  9. What’s remarkable about the oral argument is how Justice Sottomayor seems to have suddenly gotten religion. She sounds like she just walked in from protesting an abortion clinic. She repeats the phrase “destroying lives” with the sel-righteous air of someone used to doing sidewalk counseling and holding up enlarged pictures of body parts. She says “This is not the about the law. This is about our choice to destroy lives” with the smug, judgmental fervor of a fundie.

    She acts, in short, as if she could could just walk away and joined the other side, as if she had never previously written against making moralizing judgements about termination choices, as if she had never previously believed that protecting Americans’ freedom to make the very choice she now some self-righteously castigates lies is at the heart of what our law is all about.

    1. For years, the American people have been urged to ignore this type of rhetoric, just walk through the sidewalk counselors and their morals and do what you need to do.

      Why should folks who have for years urged the American people to ignore this sort of morals-type rhetoric judging the choices they make, think that people will suddenly pay attention to exactly what they have been urged to unite themselves to all these years, just because it happens to be their own morals that are at stake?

      And this really is sidewalk counselor rhetoric. What Justice Sotomayor said matches exactly the things that get shouted outside an abortion clinics. verbatim. Word for word.

  10. I guess liberals want a ruling from the court that Democrat presidents can issue executive orders and can overturn executive orders of Republican presidents, but that Republican presidents cannot issue executive orders that overturn executive orders issued by Democratic party presidents. Why, because Republicans are bad. Inequality is good if it is against people we know are bad. We become a nation of men, not laws.

  11. It’s crazy to me how difficult it is to undo a regulation. Doesn’t seem right.

  12. So I guess if Scotus rules the way Blackman wants he will be celebrating the addition of one more line to his CV, while the deportations go on.

    What a fucking asshole.

    1. I’ll be celebrating too. These invaders don’t belong here, and neither do their fellow countrymen.

  13. At oral argument, the administration denied that its sole grounds were a claim the prior policy was illegal.

    It first said the administration’s decision was a matter of unreviewable prosecutorial discretion analogous to the FDA’s decision not to regulate drugs used in prisoner executions, implicitly suggesting (without requiring the courts to decide) that the prior policy was also a similarly legal exercise of prosecutorial discretion.

    It next said that if the justices find the matter reviewable, they should consider the administration’s policy reasons, and a decision to tighten enforcement is always a rational one for a law enforcement agency to make.

    Finally, it said that only if the justices denied the other arguments should it even reach the question of whether the prior policy was actually illegal.

  14. Can someone explain to me why in the middle of an election year is not the right time to have a fight over immigration policy?

    1. Anybody whose position on immigration policy is unpopular with the voters is going to find that a bad time to have the fight.

      1. Bad for the politicians seeking to get reelected. Great for the people trying to collect true facts about the people they elected, or might want to elect this time around. I doubt the White House wants to announce “We aren’t interested in having an immigration fight right now because it will hurt our chances at reelection.”

        1. And whose needs are the ones American politicians can be counted on to meet? Not in the America envisioned by the Framers, but in America as we now find it? Of course this isn’t said, it hurts election chances and therefore doesn’t meet politicians’ needs.

Please to post comments

Impeachment

Impeachment and the Sixth Amendment

No, President Trump cannot invoke his Sixth Amendment rights in connection with House impeachment proceedings

|

Steven Calabresi is an important figure in the US legal profession, the holder of a named chair at a top-flight institution (Northwestern Pritzker School of Law) and the Co-founder and Board Chairman of the Federalist Society.  In a recent essay, "House Democrats Violate The 6th Amendment By Denying Trump A Public Trial," available here, he makes an argument that the House impeachment inquiry is violating President Trump's Sixth Amendment rights, an argument that is so peculiar, and so contrary to elementary and fundamental constitution principles, that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.

Here's the basic gist of what he wrote:

"The nation is transfixed by the impeachment proceedings against President Donald Trump for purportedly using U.S. military aid to Ukraine to prompt that country to reopen a corruption into former Vice President Joe Biden's son. What no one is focusing on is the fact that the Democratic majority in the House of Representatives is violating the president's constitutional rights. The House majority is thus itself acting unconstitutionally and is seriously abusing its power.

Impeachment is a legal proceeding, and just as criminal defendants have constitutional rights in criminal trials so too does Trump have constitutional rights, which House Democrats are denying him. For example, the Sixth Amendment gives criminal defendants the right to "a speedy and public trial." House Democrats are trying Trump in secret and are denying him the right to a public proceeding….

The Sixth Amendment also guarantees criminal defendants the right to be "informed" of the charges against them. House Democrats are not informing Trump of the charges against him and are leaking salacious information to the press.  This, too, violates Trumps rights under the federal Bill of Rights.

Moreover, the Sixth Amendment guarantees Trump the right "to confront the witnesses against him," which right House Democrats are denying to Trump. The president has a right under current Supreme Court case law to have a public face-to-face confrontation with the witnesses against and to testify in his own defense. House Democrats are denying the president that very basic constitutional right…."

Perhaps "no one is focusing on this" because it is utter nonsense, completely devoid of any apparent constitutional logic.  Yes, impeachment is a "legal proceeding"—but it is not a criminal proceeding to which the 6th Amendment applies; yes, "criminal defendants" are guaranteed the right to a speedy trial, to be informed of the charges, to confront witnesses, etc.—but Mr. Trump is not a "criminal defendant" in the impeachment proceedings, so Prof. Calabresi's claim makes no sense whatsoever.

To review, here's the text of the 6th Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

The critical phrase, of course, is the first one, explicitly linking 6th Amendment protections to "the accused" in a "criminal prosecution." There is more than a century's worth of precedent construing that critical limitation on the Amendment's scope.  A "criminal prosecution" begins, and the 6th Amendment attaches, at the "initiation of adversary judicial criminal proceedings—whether by way of formal charge, preliminary hearing, indictment, information, or arraignment—because the initiation of such proceedings marks the commencement of the criminal prosecutions to which alone the explicit guarantees of the Sixth Amendment are applicable." Moore v. Illinois, 434 US 22 (1977); Texas v. Cobb, 532 U.S. 162 (2001). And to constitute a criminal proceeding, there must be a threat of "actual imprisonment"—a substantial "deprivation of liberty." Scott v. Illinois, 440 U.S. 367 (1979), Rothgery v. Gillespie County, Tex., 128 S. Ct. 2578 (2008).

Thus, 6th Amendment protections do not apply to:

  • proceedings involving "petty" (as opposed to "serious") crimes, as measured by the length of the authorized prison term, Muniz v. Hoffman, 422 U.S. 454 (1975);
  • to misdemeanors (unless accompanied by prison terms for violators), U.S. v. Nachtigal, 507 U.S. 1 (1993);
  • prison disciplinary hearings, Minnesota v. Murphy, 465 U.S. 420 (1984);
  • parental status termination hearings, Lassiter v. Department of Social Services of Durham County, 452 U.S. 18 (1981);
  • juvenile delinquency proceedings, McKeiver v. Pennsylvania, 403 U.S. 528 (1971);
  • probation hearings, U.S. v. Nachtigal, 507 U.S. 1 (1993), Frank v. U.S., 395 U.S. 147 (1969);
  • summary courts-martial, Middendorf v. Henry, 425 U.S. 25 (1976);
  • asset forfeiture proceedings, Libretti v. U.S., 516 U.S. 29 (1995);
  • civil (as opposed to criminal) contempt proceedings, or civil proceedings generally, Turner v. Rogers, 564 U.S. 431 (2011)

because (and to the extent that) these are not criminal proceedings involving the prospect of imposing a punishment of "actual imprisonment" on the litigant.

The notion that the House's impeachment inquiry is, constitutionally-speaking, an "adversary judicial criminal proceeding" to which the 6th Amendment applies is, frankly, laughable and nothing short of ridiculous, the sort of mistake a 1L might make on a ConLaw 1 exam but not something one expects from an eminent law professor holding a position at a top law school. The impeachment inquiry is not an adversary judicial criminal proceeding because it is neither a "judicial" proceeding nor a "criminal" proceeding; it is a Congressional proceeding, and whatever the outcome may be it will not, and cannot, result in Trump's imprisonment or any deprivation of his liberty, but only in his removal from office. [Indeed, it would certainly be an obvious and egregious violation of the constitutional separation of powers were Congress to undertake a true criminal proceeding, a function reserved to the Judiciary.]

Whatever constitutional rules or norms might apply to the procedures undertaken as part of the impeachment inquiry—which is a complicated question about which reasonable people might disagree—they are not to be found in the Sixth Amendment, and Trump cannot invoke any of his "6th Amendment rights" (to demand a speedy and public trial or an impartial jury of the State and district wherein the crime shall have been committed, to be informed of the nature and cause of the accusation, to confront with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, or to have the Assistance of Counsel for his defense) in connection with that inquiry.

This is pretty elementary stuff—and it is inconceivable to me that someone as well-versed in constitutional law as Steve Calabresi would not recognize this as the constitutional nonsense that it so obviously is. What we have then, perhaps, is another illustration of Trump Derangement Syndrome—an inability of otherwise sensible and thoughtful people to think clearly and logically about anything concerning this president. And while life is too short to try to correct all the nonsensical notions that law professors come up with, this is not just ordinary constitutional nonsense, it is particularly pernicious constitutional nonsense. We are in a portentous moment in the history of this country; it is likely that, for only the third time in 230 years, the House will pass Articles of Impeachment on to the Senate, and we will then witness a trial in the Senate of a sitting president accused of "high crimes and misdemeanors." Public opinion concerning the strength of the case, the seriousness of the charge(s), the fairness of the process, the credibility of the witnesses, etc., is—and should be—of critical importance to this undertaking. Law professors who want to contribute to the public debate and discussion about these matters surely have an obligation to get matters within their particular spheres of expertise—the laws and the Constitution—as right as they can, in order to assist the public in evaluating these questions and understanding these issues in the weeks and months ahead.

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  1. The right to confront witnesses against you is “deeply rooted in this Nation’s history and traditions”. Obergefell v. Hodges, 135 S. Ct. 2584 (2015) at 2618.

    The house is violating the President’s fundamental rights.

    1. Does all pre-indictment activity by investigators (let alone actual prosecutors) violate fundamental rights, you bigoted right-wing rube?

    2. Bob, go take a nap.

      What does same sex marriage have to do with confronting witnesses?

      1. For a certain class of clinger, it’s guns, god, and especially gays all the way down.

      2. “What does same sex marriage have to do with confronting witnesses?”

        Just using existing precedent to support my thesis. Was Kennedy saying that marriage, and only marriage is “deeply rooted in this Nation’s history and traditions”?

        1. Are you sure it’s not because you’ve adopted some sort of nihilist approach to the law because the Supreme Court found a right to same sex marriage, and therefore you think nothing matters anymore? And this decision in particular triggered the nihilism because of your not-so-secret antipathy towards gay people? And that you brought it up in this context to specifically to remind people of your not-so-secret antipathy towards gay people?

    3. No, the right to confront witnesses against you in a criminal proceeding is deeply rooted in this Nation’s history and traditions. You don’t have such a right in all contexts and all types of proceedings, and the 6th Amendment doesn’t give you that right outside of a criminal proceeding. If the prosecutor’s office is investigating me at this moment for, say, tax fraud, it can hear from witnesses without giving me the right to confront them; if that proceeding moves to an indictment, then I have the right to do that – but not before.
      Which is not to say that at the appropriate stage of these proceedings — the trial in the Senate – Trump shouldn’t have the right to confront witnesses against him. He should, as a matter of elemental fairness. And, I’m sure, he will. But at this stage of the proceeding? Nope.

      1. “No, the right to confront witnesses against you in a criminal proceeding is deeply rooted in this Nation’s history and traditions.”

        Really?

        We don’t give compulsory process to defendants in civil proceedings?

        You are fixated on the 6A, I am talking about something more “deeply rooted in this Nation’s history and traditions” than that.

        Fundamental fairness. Justice. The American Way.

        Its not just confined to the Senate, the House has to honor it as well.

        1. I should add that:

          “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

          1. Yes! The Constitution doesn’t *give* us our rights and liberties. It merely states in what ways the government cannot infringe them. Just as there is no provision that says that the government cannot infringe on a woman’s right to abortion, the SCOTUS found that right anyway. It might in this situation, as well. Nothing ventured, nothing gained.

            1. All these “living constitutionalists” suddenly getting all textual.

        2. No, the confrontation clause doesn’t apply in civil proceedings, not that a House impeachment inquiry is analogous. The most direct analogy is a grand jury proceeding, and the defendant has no confrontation right there.

        3. Process counts as confrontation now?

          As to your pivot away from the Sixth, you’ve also pivoted away from the OP.

        4. Even if we assume you are correct, an analogy here would be helpful. The inquiry stage of an impeachment is akin to the investigatory stage of a criminal proceeding. A criminal does not have the opportunity to cross-examine a grand jury witness. A criminal does not take part in the crafting of the charges against him. Trump’s lawyers will be able to cross-examine witnesses at the trial, if it comes to that.

          1. If we are talking grand jury process, not only does the defendant not have the right to confront(cross examine) prosecution witnesses, the defendant doesn’t even have the right to present witnesses of his own.

            1. A typical grand jury does not also result in strategic leaking of cherrypicked morsels to a compliant press.

              1. The transcripts have been released, you moron.

              2. Trump supporters demand that the “grand jury” be public or else it’s not fair.
                House releases transcripts in response.
                Trump supporters claim release of transcripts is unfair.

                .whatever.

                1. Precedent from previous impeachments are not being followed. Why is that?

                  1. Two things jump to mind:
                    1) I don’t think we want to hold up Clinton’s impeachment as an aspirational precedent. No one should want that.
                    2) I was under the impression that the current rules governing the impeachment hearings were passed by the GOP majority House during Obama’s administration. Wouldn’t GOP rules being applied to a member of the GOP be considered automatically “fair” here?

                  2. 1) Not true.
                    2) Why does it need to be? Who says that previous impeachments set the “correct” approach? It’s not like we’re talking about firmly established historical practices; we’re talking about an n of 2.

                    1. On 2, the strong argument to me is that more protections to protect against abuses are a good thing.

                      Assume that Putin has coordinated the buying of the 2018 election with President Obama, and that they’re using Burisma as an intermediary, so that when Joe Biden got the Ukrainian prosecutors fired it was as he claimed at the direction of the president, but for corrupt purposes to get a one world government under the Clintons. When the American people foiled that plan in 2016 they had to switch to 2018 where through mass voter abuse they gained control of the House to carry out their nefarious plans. Since they still have to win the 2020 election to be able to end all future US elections they need at least a passable reason to impeach the savior of America. I hope I’ve made that sufficiently hyperbolic to get a few laughs.

                      Now with that as the background facts, would we expect to see more or fewer procedural protections than last time? Remember the situation is that it’s a scam, so we’d expect to see fewer protections against scams – which is what we’re seeing.

                      If the point of the “investigation” was to get the right answer they’d have everyone questioned by all parties, as the only reason to not want information to come out is if you don’t think that the truth is useful to you. So, for example, if Trump really was concerned about Biden bribing Ukraine he’d have acted in just the way he did, and to determine if he just believed a conspiracy theory or whether there was a legitimate problem they’d need to investigate the Bidens. But they’re not, which is itself evidence that they don’t care about abuse by their allies.

                      Sadly this shouldn’t surprise anyone, since most people are fine with their friends doing exactly what they condemn their enemies for doing.

          2. If an impeachment textually isn’t a criminal proceeding or even by deduction how can it be a grand jury proceeding by deduction? If it isn’t one on textual grounds it can’t be the other.
            We are forced to look to official house rules for the process.
            I’m also guessing that the phrase high crimes and misdemeanors has no bearing on the subject.
            https://budgetcounsel.files.wordpress.com/2016/11/deschlers-v4-ch-15-ch-17.pdf
            Ref. ch 15, sec. 12, ppg. 2366-68. HOUSE RULES FOR IMPEACHMENT: “Because the language of the
            sixth amendment stipulates its
            application ‘‘In all criminal prosecutions,’’ the amendment does
            not apply directly to congressional
            investigations. Consequently, a
            witness is not entitled to confront
            or cross-examine witnesses.(6) But the rules of the House take cognizance of rights included in the
            sixth amendment, including right
            to counsel and compulsory process. Thus, a witness may be accompanied by his own counsel for
            the purpose of advising him of his
            constitutional rights.(7) Furthermore, if a committee determines
            that evidence or testimony at an
            investigative hearing may tend to
            defame, degrade, or incriminate
            any person, such person is entitled to request that additional witnesses be subpenaed.(8) Where the
            committee does not determine
            that evidence or testimony may
            defame, degrade, or incriminate
            any person, the chairman receives
            and the committee disposes of requests to subpena additional witnesses.(9)”

        5. When the government is investigating a civil violation, no, the potential target does not have the right to compulsory process or to examine witnesses. The AG can issue Civil investigative Demands, and there is no right to cross-ex, issue their own process or participate in the investigation and it is not public.See, e,g, 15 USC §1312: or 31 U.S.C. § 3733. I represent whistle-blowers in False Claims Act actions. We go to the feds in secret, and show our evidence. Then the feds can and do issue CIDs (civil investigative demands) for documents or testimony. Sometimes the investigations can last years, and it is all done to investigate the whistle-blower’s complaint. (The False Claims Act is a special interest of Sen. Grassley’s, which is one of the reasons, I presume, why he has come out in favor of protecting the whistle-blower here.) The information obtained by CID can be used to commence either civil or criminal public proceedings. Once the public proceedings begin, the defendant’s rights attach.

      2. Which is not to say that at the appropriate stage of these proceedings — the trial in the Senate – Trump shouldn’t have the right to confront witnesses against him. He should, as a matter of elemental fairness.

        That is an interesting point, Professor Post. What distinction do you make from impeachment versus the Senate trial? In other words, why is one political and the other legal, and why would POTUS Trump not have the same rights in both proceedings?

        Not being obtuse, but am genuinely curious on your take.

        1. To compare against criminal justice process, the House impeachment proceedings would be the equivalent of a grand jury proceeding, where the defense has no right/opportunity to participate in any form.

          1. Ok, I get that. In a grand jury proceeding, there is a judge to mediate the worst/wrong aspects of a prosecutor’s argument/behavior. Where is the mediating agent in impeachment?

            1. The votes of the House of Representatives, which includes elected officials from both main parties as well as others. If the “prosecutor,” which is the entire House, is out of bounds, the voting process will presumably handle that. Assuming, that is, one believes that elections have consequences. Given that the current set of rules governing this process were enacted by a GOP majority House, one would think the GOP would feel the rules were adequate.

              #IronyIsDead

              1. Meh, we’ll see how it all plays out, shawn. Some think Team D will chicken out and not impeach. Others (myself included) think Team D will absolutely impeach. There is a lot of arm waving about process. This has happened twice before: Johnson, Clinton. I was around for Clinton’s impeachment and what I am hearing now sounds a lot like what I heard then. I bet what they said in 1868 is not terribly different than what we hear now.

                Personally, I think ‘We the People’ are the ultimate check against impeachment via the ballot box. If the People have the view that the process was illegitimate, and impeachment wrong; they will unceremoniously dump those responsible.

                Although I do live in the People’s Republic of NJ, I live in a competitive Congressional district. So I wrote my congressman and told him what I thought. And mentioned I’ll be voting in November 2020.

                1. Based on what I’ve been hearing, as someone who also recalls Clinton’s impeachment, I also think the House will vote to impeach and likely do so for good reasons regardless of the role partisanship played.

                  I recall a very long and tedious Whitewater investigation that turned up very little that could be used to impeach Clinton, which is why it boiled down to impeaching him for lying about cheating on his wife. The Democrat-led Senate didn’t vote to remove him and the public voted to re-elect him. That pretty much told the GOP what everyone else thought of their methods.

                  Fast forward to today and we have a significant amount of evidence that this president used his office to extort an allied government into making false charges against an opponent.

                  Lying about cheating on your wife versus withholding money from a country being invaded by Russia in order to manufacture a charge against your potential opponent… not very different?

                  1. The Democrat-led Senate didn’t vote to remove him and the public voted to re-elect him.

                    You remember the 2000 election very differently than I do.

                  2. The Senate that acquitted Clinton was led by Republicans.

          2. That is not how it has worked in the past. What changed?

        2. The distinction is not between political and legal. The difference is between the investigatory stage and the trial stage. Investigations, whether civil or criminal are rarely public. Even when investigating a civil violation the AG can issue Civil Investigative Demands (CIDs) which have the force of a subpoena, in order to obtain documents or depositions. This process was more open than either a civil or criminal investigation because there were GOP members who could cross-examine and leak to press the same as the Dem counterparts. Really, the whole argument is be-clowning the GOP. The Benghazi hearings conducted the investigation the same way–in secret–which by extension of the present GOP argument means the entire rap on Hillary was fundamentally flawed, unfair, unconstitutional and un-American. Abjectly apologize to her and her supporters now, exonerate her of all crimes and misconduct or your position is merely intellectual dishonesty. Me, I’m not ready to do that, but you’ve put yourself in the box of being unconstitutionally unfair to Clinton. Own it.

          Not only that, but the rules allowing such hearings were invented by the GOP House which makes the entire problem and unfair process a GOP invention. If you are having a sudden revelation, apply it across the board.

      3. As I understand the argument. ==> Impeachment is political. There is no need to be fair.

        That is not the kind of country I want to live in. We should bend over backwards to be fair. It minimizes injustice. You get enough injustice and rebellion follows. And rebellion is bad for business. Besides the innocent and guilty getting killed.

        1. I don’t think that’s “the argument” as much as “the strawman.”

          The “argument” appears to be the current president used his position to deny military aid apportioned by Congress to an important national ally in order to get the ally to falsely implicate his chief political rival in a crime as means to help him get re-elected in 2020.

          Do you think we should only bend over backwards to be fair when it’s a Republican in trouble? Or, if fairness applies to Democrats too, what did you think about the treatment of Bill Clinton during his impeachment and Hillary Clinton during the Benghazi fiasco? While I don’t subscribe to fairness in the form of tit-for-tat, that is certainly one definition of it.

        2. “We should bend over backwards to be fair.”

          Moral and evidentiary pointers from the birthers are always special.

      4. Mr. Post, I think you may be playing grammatical games.
        Let us take your claim that this impeachment inquiry is a “congressional” proceeding.

        To what end? To remove a sitting president from office for high crimes and misdemeanors. So, the inquiry may technically not be a criminal proceeding now but once impeachment articles are passed, Does that not, retroactively, make the congressional proceeding, de facto, a criminal proceeding?

        1. Does that not, retroactively, make the congressional proceeding, de facto, a criminal proceeding?

          No.

          While I would not be sad if Donald Trump were indeed locked up, that is not actually a potential outcome of this congressional proceeding, either in the House or Senate.

        2. A judgment of conviction and removal from office does not preclude subsequent criminal proceedings, to which the full panoply of Sixth Amendment rights would apply. A separate matter.

    4. One point : The House is deciding whether Trump should be charged and put on trial, and there is no right to confront witnesses in analogous criminal proceedings, as seen with grand juries and their ceaseless determination to charge ham sandwiches.

      One question : That said, I’d like people who actually understand the law to answer this : Trump is stonewalling the house proceedings, forbidding testimony from White House officials. In the event of a Senate trial presided by Chief Justice Roberts, could testimony by those officials be compelled in any legal and constitutional way?

      1. There are a few cases in the courts now deciding the question as to whether an executive branch employee must answer a duly issued Congressional subpoena in the context of an impeachment inquiry. Although it is true that the president can assert executive privilege to cause employees to withhold conversations an employee had with the president concerning “military, diplomatic, or sensitive national security secrets,” the privilege generally does not extend beyond conversations not involving the president or actions other than conversations.

        Further, the privilege is not absolute (see United States v. Nixon, 418 U.S. 683 (1974), which held (among other things) that the president cannot use executive privilege to withhold evidence that is demonstrably relevant in a criminal trial). Whether the reasoning from US v. Nixon is applicable to an impeachment trial is TBD, but I think the answer is that the employees will be ordered by court to testify and, absent a particularized showing that the information sought by Congress relates to conversations with the president regarding “military, diplomatic, or sensitive national security secrets” , they won’t be able to rely on executive privilege.

    5. I had to create an account to reply to your comment to point out that your reasoning is deeply flawed, and entirely ironic. The test you quote is commonly used to determine whether the Constitution protects certain rights that are not explicitly set forth therein (aka implied fundamental rights). The Supreme Court has historically found such implied fundamental rights existing only to the extent they are “deeply rooted in this Nation’s history and traditions.” The most famous of these rights is the “right of privacy”–the Constitution does not explicitly grant a right of privacy, yet the Supreme Court has held that such right is deeply rooted in this Nation’s history and traditions, and therefore the Constitution protects it.

      The passage you quote is a recitation of this test, and it is being discussed in Obergefell in the context of whether the right to marry is an implied fundamental right. The right to confront witnesses against you, by contrast, is not an “implied” fundamental right, but rather an express right found in the 6th Amendment. That’s your first mistake. The next, more important mistake, is that you’ve failed to note that the rights enshrined in the 6th Amendment, particularly the right to confront witnesses against you, is limited to criminal cases. And an impeachment is decidedly not a criminal case. In fact, the Constitution is clear that the only consequence of being impeached and convicted is the removal from office (and, sometimes, the inability to hold office in the future). In other words, the effect of impeachment cannot be imprisonment or fine (or anything other than removal from office), and, as such, it is not a criminal proceeding.

      Finally, a note on the irony of quoting this passage. There is an argument by many on the right that the Constitution protects only those rights explicitly mentioned in the Constitution, and that only “activist judges” could find that the Constitution protects things not mentioned in the Constitution. Although I don’t know your political leaning or your jurisprudence on implied fundamental rights, my guess is that you’re against activist judges who make up the law as they go along. I therefore delight in the fact that you have relied on an argument commonly used by such “activist judges” to make a point that is demonstrably false.

    6. I knew something dumb like that would be the very first comment (and many of the succeeding ones) I just wasn’t certain which dingbat would make it.

    7. Bob’s cynicism is correct. If SCOTUS can say someone’s 14th Amendment rights are violated by continual recounts of state elections, then it can say a president’s 6th Amendment rights are violated.

      This post by Post also semi-eloquently illustrates the famous joke about 4 lawyers in the room and 5 opinions.

    8. Oh Bob, why do you quote just part of a sentence from a case, out of context, that does not apply to the confrontation right in criminal cases, when trying to oppose an argument that is about the confrontation right in criminal cases?
      What kind of an argument is that?

    9. Agreed – but in the end, I think Trump wins more than he loses.
      When Trump released the call transcript, my first thought was, “He’s hooked the Dims – and now he’s going to play them like a fish!”
      And play them he has. After Schiff lied about his association with the “whistle-blower” and read the FAKE transcript in Congress. Pelosi went nuts thinking the FAKE transcript was the real thing. When she started screaming “IMPEACHMENT!” it was really Trump setting the hook.

      Now Trump’s playing them. The Dims know they have nothing. They can’t back out because they’ll look like fools. They can’t present their case, because there IS no case – and they’ll look like vindictive fools. So they try to hold secret meetings and refuse any witness who might disrupt their narrative – and all of America can see this and understand that it’s what the Dims do when they get caught in a big lie. Look at Schiff – the ass clown who for 3 years swore that HE had evidence of Trump’s Russia Collusion. But where is it? Never existed.

      The real beauty of the impeachment circus is that Dims in Red States will have to go on record against Trump (sacrificing themselves and the House majority) or go on record against the party – splintering a mess that is already divided between morons and super-left ultra-morons. When the impeachment vote comes, that’s when Trump delivers the gaff and it’s all over.

      As for when the matter gets to the senate – I’m favoring the idea that the Senate simply ignore it – never giving it any recognition at all. The Senate can do this. There’s no requirement they hold a trial.

      1. I know that responding to someone who thinks that using the term “Dims” is the height of wit is a waste of time, but

        1) Schiff did not lie, and did not read a fake transcript.
        2) Pelosi didn’t scream anything.
        3) The Democrats have already presented that case, and it takes someone is both morally and intellectually challenged not to see it.
        4) The Senate isn’t going to do that.

  2. Trump Derangement Syndrome is an example of the modern Political Derangement Syndrome that affects seemingly everyone today. What we need is a good war to focus us on an external enemy rather than hunting for the enemy within. If only Hillary had won. /s

    1. ‘s not everyone, just everyone online.

    2. I’d be okay with the war – but can we please just hunt down the libtards and shoot them instead? They’re the greatest threat to America – and it’s time they were destroyed.

      I’m hoping some day I’ll read about the president crowing that we got “Shitty” Schiff and “Nervous” Nancy Pelosi and they’ll never bother us again.

      1. The modern right, folks.

      2. “I’d be okay with the war – but can we please just hunt down the libtards and shoot them instead?”

        How is your Volokh Conspiracy civility standards project progressing, Prof. Volokh?

        Perhaps your responsibilities with respect to the Volokh Conspiracy Board of Censors are interfering with the civility work?

  3. “House Democrats Violate The 6th Amendment By Denying Trump A Public Trial”

    House Democrats are not denying Trump a public trial; they may be arranging something similar to one for him, however.

    Is this the same partisan hack who claimed the Mueller investigation was unlawful?

  4. […] that one has to wonder what he could possibly have been thinking and what could possibly have motivated him to put the argument forward.

    “One” can trivially see he’s a partisan defending a politician he likes.

    It’s really that simple.

  5. IMO the parties on both sides are being disingenuous. It is a contest for public opinion. The Senate is not the jury, the public is. The public will not only judge Trump’s actions, but they will also judge the fairness of the process. The public’s conclusions and their methods can be as extra-legal as they wish.

    1. While I get what you’re saying, I think you yourself are being disingenuous. The public’s conclusions have only an indirect effect on what the Senate might vote for. If over half of the public find the House’s case against the President valid but the Senate votes to acquit out of partisan loyalty, the President is acquitted. The public majority’s opinion has no impact there. This would mirror the 2016 election where the majority of citizens voted for a different candidate than the one that won the contest. Senators might be worried about how that might impact them in future elections, but that fear is tempered by gerrymandering, voter purges, and other techniques they might use to ensure reelection regardless of the public’s conclusions.

      1. You are mostly right, but of course gerrymandering does not apply to senators.

  6. The Constitution is all over the map, so let’s just say impeachment is at least a *quasi*-criminal proceeding, complete with accuser (the House), defendant (in this case the Pres), and (since it’s the Pres being impeached) the Chief Justice as presiding officer.

    As for what procedures the House follows, I’d say that’s up to them, they’re the accusing body and should have some flexibility – though they should *choose* to observe fundamental fairness.

    And I’m aware of the grand jury analogy – that’s a warning to be avoided, not an example to follow – prosecutors have worked hard to make grand juries into rubber stamps and deny fairness to the suspect – is that worth imitating?

    If the case gets to the Senate, then I’d say the Pres is entitled to due process up the wazoo, including the right to bring in evidence relevant to the accusation against him. So if the accusation is that he wanted to investigate poor Joe Biden from improper motives, then the Pres would be able to counter that narrative by showing that there was actually stuff Biden did which was worth investigating.

    1. But the House inquiry is actually much fairer to Trump than a grand jury proceeding is to the potential defendant.

      There are close to 50 Republicans on the relevant committees with the right to question witnesses, among other things.

      And of course if Trump wants Mulvaney, for example, to appear and testify about the matter he only has to tell him to go.

      1. “But the House inquiry is actually much fairer to Trump than a grand jury proceeding is to the potential defendant.”

        Far too many grand juries observe such rock-bottom standards that saying “it’s better than a grand jury” prompts the response “so was the Star Chamber.”

        1. But isn’t the House acting in the role of the grand jury?

          I don’t think the Star Chamber had a subsequent Senate trial component.

          1. If the House *is* acting in the grand jury role, they should at least have the hardihood not to be browbeaten by some official(s) into using unfair procedures, as many grand juries have been.

            The buck-passing attitude of “if I’m wrong someone else can sort it out” is probably what led too many modern grand juries into being such pushovers to indict. Surely the House of Representatives of the United States would be above such unworthy motives!

            1. I know a few defense attorneys. Grand jury abuse of process is not one of their many, many complaints about the system.

              1. Have I been misinformed?

                I have heard of one case where a grand jury voted to indict and one of the jurors, uncertain of the defendant’s guilt but voting to indict anyway, said “I hope he has a good lawyer.”

                1. “Q: Are the rights of the accused protected?

                  “ANSWER ↕

                  “A: Grand juries are constitutional, so in the broadest sense, yes. But in effect, the rules of grand juries are clearly for the benefit of the prosecution and encourage law enforcement to use unconstitutional means to get an indictment.

                  “The grand jury process does not encourage constitutional police practices. Information obtained by illegal police investigation, unconstitutional surveillance, or by unreliable means, can be heard and relied upon by grand jurors, even though that information would not be admissible if the case proceeded to trial.

                  “Additionally, even if a prosecutor knows of information that would help show that the accused person is innocent, she is not required to present it to the grand jury. So, while two sides are presented in a trial, only one side will be presented in a grand jury proceeding.”

                  https://www.acluohio.org/ohio-grand-juries-faq

                  1. Sure, it’s a lever one could use to reform things like the above evils. But it’s never been used as such.

                    Your sudden discovery of the need for institutional criminal justice reform is not the most believable thing in the world.

                    1. And you know my discovery is sudden because…

                    2. I’ve never heard you talk about grand jury reforms in the past, and you’re not one to hold back on your comments.

                      Perhaps this convenient outlier position is just a coincidence. Though it is mighty convenient.

                    3. I’m not in the mood to link to my three-part discussion of grand-jury reforms, preceding the Ukraine/Trump affair by quite some time.

                      That’s because I want to leave you to your preconceptions and not keep prodding you to change your views, which would simply annoy you.

                    4. I don’t see how the comment you posted is anything like this ACLU argument or the not to be browbeaten by some official(s) into using unfair procedures, as many grand juries have been argument.

                      Still, I’ll cede to your vehemence that you want grand juries to do better, and are applying this to the House. No need to assume bad faith.

                    5. “No need to assume bad faith.”

                      Which makes it all the more interesting that you did so.

                      If you’re going to double down on your assertion, I’d love to see what you do with these posts of mine:

                      https://reason.com/2018/09/24/arizona-leos-arrest-the-wrong-tim-diaz/#comment-7480043

            2. Let everyone who gives an official decision about someone else’s guilt or innocence take their decision as seriously as if they were making the final decision. The House (or grand jury) should be able to say to itself “we’re convinced this guy is guilty and we’ve done what we could to hasten them along the road to conviction. If other people in the system reject our accusation, that’s on them, we at least have done our duty” (stirring music begins)

              1. That you’ve decided this is an important principle when it happens to help you argue online about Trump…

                1. …and you know this because…

                  1. Since I don’t want Trump to be convicted, I might potentially be harming my own case by saying impeachment is a quasi-criminal proceeding governed by at least some of the norms of a fair trial.

                    That opens up the possibility that new evidence against Trump could turn up which shows he committed impeachable offenses (presumably of a worse character than what Congress chose to let slide in the past).

                    If I simply said impeachment was purely political and that the political interests of the U. S. require that Trump be retained as President for fear of handing the country bound hand and foot over to the Democrats, then I could say “acquit Trump” and leave it at that. Not that there aren’t plenty of people here who would be willing at least to agree with my premise.

                    1. Pull the other one.

                      The argument isn’t with yourself, it’s with the public. As such, procedural arguments are a useful tactic to muddy the water and draw the eye from the substance and evidence.

                    2. Simply as a matter of curiosity, I’m interested in when (if ever) you will acknowledge that your “never interested in the grand jury before” talking point will last before you’re too embarrassed to continue with it.

                    3. I wasn’t convinced by your link, but I’m willing to take your word for it since you’re being so insistence, and all I have is circumstantial convenient timing.

                      I try to revert to an assumption of good faith, though sometimes it can strain credulity.

                    4. No, not good enough – see my other link above.

                      And a passive-aggressive stance of “I choose to believe you out of the goodness of my heart” isn’t going to work.

                      No, you are simply wrong.

                    5. “If I simply said impeachment was purely political and that the political interests of the U. S. require that Trump be retained as President for fear of handing the country bound hand and foot over to the Democrats,”

                      You know Pence is a Republican, right?

                    6. Good to see you have the interests of the Republican Party at heart.

              2. The claims you made – and which I refuted – are these:

                “Your sudden discovery of the need for institutional criminal justice reform is not the most believable thing in the world….

                “I’ve never heard you talk about grand jury reforms in the past…”

                Again, it’s not just that you failed to prove your assertion, I *disproved* it. There’s no room for you to say you’ll be charitable and assume I’m telling the truth. You stepped in it, and I’m reminding you of that fact.

                1. You deny I never heard you talk about grand jury reforms in the past?
                  Good luck proving that one!!

                  I’ve said I only had a circumstantial case. If you’re going to take it to the mattresses, I can’t really gainsay you. But I’m not uncomfortable with having put you to the question about the convenience of your grand jury due process requirements.

                  1. You were just asking questions!

                    No, not really, you said this: ““Your sudden discovery of the need for institutional criminal justice reform is not the most believable thing in the world.”

                    And what I said about reforming grand juries was this:

                    Eddy
                    September.24.2018 at 3:19 pm
                    So long as grand juries hear only what the prosecution tells them, this crap [false accusation covered in a Reason article] will happen.

                    There seems to be some confusion that because they operate informally, grand juries should operate unfairly.

                    How can the constitutional right to a grand jury have any meaning if their only source of information (apart from their personal knowledge) is some hack prosecutor?

                    Go back to the old days, let anyone share information with the grand jury.

                    Eddy
                    September.24.2018 at 3:37 pm
                    Another reform – let the grand jury hire special prosecutor if it looks like the regular prosecutor, or his witnesses, have been lying, targeting innocent people, etc.

                    Eddy
                    September.24.2018 at 3:39 pm
                    In particular, let them hire special prosecutors to investigate prosecutors who withhold information from the grand jury.

                    If prosecutors are going to pretend to be impartial legal advisors to the grand jury, let them be held to that standard.

                    1. I mean, fine. I guess I wasn’t following Eddie super carefully in September 24th.

                      Still fine with pointing out how convenient your outlier legal view is when I didn’t have that info. You must admit, it’s pretty convenient!

                      As I said multiple times, I’m willing to rely on your good faith. But glad you’re taking the time to demonstrate your consistency. Shows it matters to you.

                    2. “glad you’re taking the time to demonstrate your consistency. Shows it matters to you.”

                      Technically, I’m not defending myself, I’m attacking you.

                    3. Would it matter to you to demonstrate that you’re not a Democratic Party apologist?

                      What proof do you have?

                      I’m just asking questions!

                  2. “You deny I never heard you talk about grand jury reforms in the past?
                    Good luck proving that one!!”

                    Heh, heh, you got me there, I can’t really rebut your “I was ignorant and didn’t know it” defense.

                    1. In fact, far from wanting to challenge your concession that you were ignorant and unaware of the extent of your own ignorance, I will cheerfully accept that concession.

                    2. Not reading every comment on the VC isn’t really ignorance.

                    3. No, but concluding from your cursory reading that I hadn’t commented on grand juries *is* fairly ignorant.

                    4. In short, you made a major misstatement about what I said (or what I *didn’t* say) and you backed up that misstatement with what you now admit was a highly unreliable factoid – namely that you yourself, in your cursory examination, had not seen me say certain things.

                      Now you think you can turn the weakness of your own argument against me.

                    5. “concluding from your cursory reading that I hadn’t commented on grand juries *is* fairly ignorant.”

                      Now establish that ignoring you generally isn’t the best path.

                    6. Ignore away, don’t let me stop you.

            3. What are these unfair procedures, Eddy?

              As I pointed out, there are plenty of Republicans in the hearings, and they are not all as stupid as Jim Jordan, so the witnesses are subject to some amount of cross-examination. Possible defense witnesses like Mulvaney and Giuliani are being prevented from appearing by Trump himself.

              Transcripts of witness testimony has been released, contrary to Brett’s imaginings, and there will be public hearings starting tomorrow.

              This “star chamber” crap is a tiresome and inaccurate talking point, with no substance, even if Fox keeps repeating it.

              1. Looks like Eddy wants full trial due process at grand juries – defense attorneys, full disclosure of all evidence. And has for a while.

                Seems pretty unworkable to me, but at least he’s consistent!

                1. Sure it’s unworkable, but then again, I didn’t say it.

                  I’ll have to apply my own remark to you: “There seems to be some confusion that because they operate informally, grand juries should operate unfairly.”

                  1. The one thing you have right is, sure, I think grand juries should have access to the same evidence the prosecutor has. On the other hand, since grand juries can consider hearsay and the like, they wouldn’t have to examine the witnesses in person.

                    And I said outsiders should be able to submit information – not that defense attorneys should have the right to an evidentiary hearing.

                    1. Eddy,

                      I’m sympathetic to calls for grand jury reform.

                      But complaining about grand jury abuse does not answer the question as to what is so unfair about these hearings. Again, there are an awful lot of Republicans in the room, with the opportunity to ask questions. And regardless of how close it is or isn’t to a grand jury, it remains a process designed only to see whether an accusation is sufficiently well-grounded to merit moving on to adjudication in another forum – the Senate.

                    2. I’m still interested in the way you

                      -first referred to my alleged “sudden discovery of the need for institutional criminal justice reform” – then failing to graciously withdraw the charge once I pointed out it was false.

                      Instead, you declared that “I’ve said I only had a circumstantial case,” which is not in fact what you said – you said I’d had a “sudden discovery,” not that “it looks to me like a sudden discovery,” which in any case would have also been false.

                      Confronted with the falsity of your claims, you still said “I’m not uncomfortable with having put you to the question about the convenience of your grand jury due process requirements.” So you’re quite comfortable making a demonstrably false statement.

                      You also said “I try to revert to an assumption of good faith, though sometimes it can strain credulity.” In fact, it’s your accusation which strains credulity.

                      Then the very fact that, by your admission, the evidence backing up your charge was near-worthless, you tried to turn against me. To support your claim of my “sudden discovery” of grand jury fairness, you cited the fact that you couldn’t find me commenting in favor of it. That was your evidence. Strangely, you then cite the inadequacy of your own evidence as if it counted against me, not against you. “I mean, fine. I guess I wasn’t following Eddie super carefully in September 24th.” (That’s September 24, 2018, by the way). No, I didn’t expect you to research all my posts, nor did I expect you to accuse me of “sudden discovery” based on that shoddy “research.”

                      Then when forced to the wall, you made another misstatement, saying I wanted some kind of full-blown hearing in the grand jury, when I simply suggested they should have access to the prosecutor’s evidence and have the power to appoint a special prosecutor to investigate shenanigans by the regular prosecutor.

                      I’m citing all this as an example of bad Internet behavior, not because I live or die on your good opinion.

                    3. Correction, replace

                      “you said I’d had a “sudden discovery,” not that “it looks to me like a sudden discovery,” which in any case would have also been false.”

                      With

                      “you said I’d had a “sudden discovery,” not that “I have circumstantial evidence of a sudden discovery,” which in any case would have also been false.”

                    4. “I’m sympathetic to calls for grand jury reform.”

                      What assurance do I have that this isn’t some “sudden discovery of the need for reform” on your part? Can you prove to me that you are *sincere* in your claims to support reform?

                    5. “The one thing you have right is, sure, I think grand juries should have access to the same evidence the prosecutor has.”

                      Grand juries don’t have the same job that petit juries do, so they don’t have the same rules for what gets presented to them. This isn’t a great scandal to those who understand this fundamental fact.

                    6. Are you quite sure you want to use the term “presented” about a grand jury when it hasn’t made a presentment? Makes you look fairly ignorant.

                    7. Also, if you wanted to seem more honest, you should have included the sentence which followed what I quoted: “On the other hand, since grand juries can consider hearsay and the like, they wouldn’t have to examine the witnesses in person.”

                      Otherwise, readers might think you’re trying to trick them into thinking I advocated the same evidentiary standards for grand and petit juries.

                    8. “followed what *you* quoted”

    2. Even if the impeachment process were like a criminal trial, the House’s part of this process is NOT a trial. That part is up to the Senate.

      Man there’s a lot of freaked out idiots posting here.

      1. Once more, and let me know if you disagree,

        “As for what procedures the House follows, I’d say that’s up to them, they’re the accusing body and should have some flexibility – though they should *choose* to observe fundamental fairness.”

        1. “fundamental fairness” in a fundamentally political process? You gotta be kidding me.

          At any rate, my comment was meant to be standalone, not a reply.

          One of the dumb things about the Constitution is having nothing less than impeachment, and having no way for anyone but the House to indict a President. No one job should be so important that it requires all sorts of special exceptions to legal proceedings to make it “fair” without disrupting government.

          1. “At any rate, my comment was meant to be standalone, not a reply.”

            I’m afraid I may have misunderstood that point.

            1. My fault. Clicked a Reply by mistake, clicked fresh comment, and it did not forget I had clicked Reply. TIL.

          2. “One of the dumb things about the Constitution is having nothing less than impeachment, and having no way for anyone but the House to indict a President. No one job should be so important that it requires all sorts of special exceptions to legal proceedings to make it “fair” without disrupting government.”

            Why should there be any penalty for the President other than removal from the Presidency? He’s either fit to serve, or he isn’t. If he is, let him serve, and if he isn’t, get him out of there ASAP. There isn’t any third position.

      2. “the House’s part of this process is NOT a trial”

        Its akin to a “preliminary hearing”

        Have you never watched Perry Mason re-runs?

        1. Perry solves murders. Nobody has accused Trump of killing anyone, so how is Perry relevant?

    3. “Grand jury” is simply the most analogous process to the House proceedings and is generally used solely to help people understand why the endless squealing From conservatives about the president’s rights is so much bollocks. Nobody is saying the House inquiry is a grand jury and nobody has proposed turning it into one.

      1. So it’s Schrödinger’s analogy – applicable and not applicable at the same time.

        1. Pretty much, yeah. No analogue is 1:1, they all have portions that are analogous and parts that aren’t.

    4. If the case gets to the Senate, then I’d say the Pres is entitled to due process up the wazoo, including the right to bring in evidence relevant to the accusation against him. So if the accusation is that he wanted to investigate poor Joe Biden from improper motives, then the Pres would be able to counter that narrative by showing that there was actually stuff Biden did which was worth investigating.

      It is firmly established that (at least as a matter of law) the president is not “entitled to” any particular process in the senate. The senate could vote to remove him without holding a single hearing if it felt like it. But as a practical matter, he will be allowed to present a case.

      And given that Republicans control the senate, it is likely he will be able to bring in all sorts of smokescreens if he wishes. But showing that Biden did something wrong is not actually relevant to the accusation against him. (I suspect my business partner is stealing from me, and I hire a hitman to get the guy. At my subsequent homicide trial, I will not be allowed to bring in evidence that my now-dead partner really was stealing from me.)

      1. If the President wishes to use the federal government to investigate the Misters Biden, he has a whole gamut of agencies to deploy. (Of course, using the federal government to “get” your political rivals doesn’t poll well.)
        If he’d like to use his own resources to investigate either or both Bidens, he’s free to do so.
        He’s even free to request an investigation from a foreign party.

        Where he got into trouble is that A) he tried to strongarm the foreigners to do his bidding using the resources of the United States, and B) it looked like he wanted them to find something even if there was nothing factual to find.

  7. the Co-founder and Board Chairman of the Federalist Society

    This seems like the answer to the non-mystery of why Calabresi wrote the article – for the Daily Caller of all publications. He’s a partisan currying favor with Trump, hoping for a judgeship maybe.

    1. Or, alternately, he could believe it. Occam’s Razor and all that.

      1. He could.

        Doesn’t say much for Northwestern.

      2. How often are important, substantive, professional legal arguments (distinguishable from half-baked partisan rants with a scant legal veneer) unspooled at the Daily Caller?

      3. “Or, alternately, he could believe it. Occam’s Razor and all that.”

        True, he could just be amazingly stupid.
        Often, assuming abject incompetence rather than malevolence is safe. I don’t think this is one of those times. But yes, it is at least possible.

    2. He’s a partisan currying favor with Trump, hoping for a judgeship maybe.

      No. He’s 70 years old; nobody is appointing him to the bench even if he wanted it, which there’s no reason to think he does.

      Nor does he actually need to curry favor with Trump. Partisanship may explain it, though.

  8. I hoped someonen would touch on this shameful/hilarious issue.

    Props to Prof. Bernstein for being sufficiently clear-eyed. I’ve dinged him before, and will again, but this speaks well of him.

    1. This is Professor Post.

      1. Awww. Dunno how I got that wrong. Well, Post is more expected.

        I’ll keep my props for the next time, then.

        1. One day, Professor Bernstein will write something about evidence. I’m sure of it.

          1. He used to write about Daubert gatekeeping a good amount.

            But I prefer his new posts. I get meaty substantive policy questions at work all the time now.
            This blog, with it’s heat/light ratio in the comments, is how I unwind.

        2. Well, SarCastr0, I appreciate the compliment – even if you confused me with that other David …

          1. Well, YOU know who you are, and that’s what’s important.

  9. What should appear obvious to everyone is that President Trump’s defenders do not want to address the accusations made. The defense seem to rest exclusively on procedural grounds or character assassinations. Is there a point at which the focus is on the accusation that the President was trying to strongarm political help from a foreign power. President Trump says he was not, his defenders seem reluctant to take up this argument. An acquittal on procedural grounds will get the President off but leave us knowing he is guilty.

    1. Guilty of what, exactly? 🙂

        1. Beating Hillary Clinton

        2. So Moderation….what did Ukraine actually do against their will that benefited POTUS Trump? Don’t you need that for extortion?

          1. Not being a lawyer myself, is a failed extortion attempt not a crime because the extortionist bungled it? Or is extortion a crime regardless of success?

            1. Agree here. Failed extortion is still extortion.

              1. Extortion is not the problem. We routinely demand that foreign countries do things we want as a quid pro quo for getting foreign aid. The problem is that Trump has pretty obviously violated 52 US Code 30121, Subsection (a) Subparagraph 2.

                And speaking of quid pro quo, have you ever wondered what Mozart would say about this issue? Most likely, he’d say this:

                https://www.youtube.com/watch?v=fV4IKJHyZ1E&t=2m29s

                1. Extortion is about getting people to do things against their own best interest. A lot of the “quid pro quos” we’ve heard Trump fans shrieking about lately, like Biden pressuring them to sack an inept prosecutor, were for their own good. Similarly, hostage negotiators are not guilty of extortion. Over-generalising can sometimes obscure significant differences of fact.

                2. “We routinely demand that foreign countries do things we want as a quid pro quo for getting foreign aid.”

                  We routinely leave most aspects of foreign policy to the Executive. But this was a case that involved appropriations, a Congressional power. The problem here was the Trump wasn’t representing “we”, he was representing only himself and his interests.

          2. Just finished researching it. Extortion is a crime, whether the pressure works or not. It was a common law crime in England and has been codified more broadly here. See, e.g., Evans v. U.S., 504 U.S. 256, 269-270. (1992). At common law, extortion could only be committed by public officials who withheld or threatened official acts to obtain favors…oh-oh. So, for originalists, it is definitively within the meaning of “high crimes and misdemeanors.”
            In some states it is called “intimidation.” It is not a tort in most states or under the Restatement, but equity will return the money if the victim pays, and that is simply because the payment is considered involuntary and under coercion/duress. Unsuccessful extortionate conduct could be a tort if it is outrageous enough to constitute intentional infliction of emotional distress. Otherwise, it is just a crime.

          3. So Moderation….what did Ukraine actually do against their will that benefited POTUS Trump? Don’t you need that for extortion?

            No. Trumpkins really need to stop relying on the Sideshow Bob defense.

          4. “what did Ukraine actually do against their will that benefited POTUS Trump?”

            They waited for their military aid while undergoing an active invasion. Pretty significant to me, if not to you.

      1. TO: Atlas_Shrugged

        RE: “Guilty of what, exactly?”

        Well, for starters, of violating 52 US Code 30121, Subsection (a) Subparagraph 2.

        (At least, that’s how I understand what I have been reading.)

    2. Hillary Clinton paid Christopher Steele, a British national to dig up dirt on her political opponent, Donald Trump and to then pass this bogus report into the highest levels of the US government to provoke a fake investigation.

      If it were not for double standards, the Left would have no standards at all.

      1. Donald Trump could have paid for an investigation of Hunter Biden connections in Ukraine. But he didn’t, he tried to strongarm Ukraine to help him. One standard here.

        1. Besides the fact that it appears he was suggesting that they find some evidence of corruption regarding Biden, whether or not there was any actual evidence of corruption regarding Biden.

      2. Hillary Clinton was not the president, and she most definitely did not try to extort Ukraine by holding back millions of dollars in exchange for dirt. See the difference?

        1. Ya know, that part about trading United States government favor for private gain is kinda relevant too…..

      3. Hillary Clinton paid Christopher Steele, a British national to dig up dirt on her political opponent, Donald Trump and to then pass this bogus report into the highest levels of the US government to provoke a fake investigation.

        Hillary Clinton paid Fusion GPS, an American company, to dig up dirt on her political opponent. This is not scandalous; every politician in a competitive race ever has paid an opposition research firm to dig up dirt on his/her political opponent.

        This is also utterly unlike abusing the office of the presidency by extorting a foreign country using taxpayer money to help one’s campaign.

      4. “Hillary Clinton paid Christopher Steele, a British national to dig up dirt on her political opponent”

        Hillary used her own money for this. Trump tried to use OUR money to buy help from Ukraine.

  10. For all the arguments here, no one is arguing that Steven Calabresi’s argument holds any water, right?

    Argue moral principle all you want, but this conservative jurist, for all his respect and intelligence, posted something immediately and ridiculously legally incorrect. Whether he was in good faith or bad I cannot say (I’d tend towards Post’s good faith interpretation over Bernard’s bad faith myself), but that’s a helluva thing.

    It fits into my general narrative about the right leaving facts behind, but this is such a departure that I’m tempted to view this more as an outlier than anything else.

    1. His argument is absolutely right. And right for the reasons I state below. I am sorry but we have due process and the right to confront witnesses every time the government is going to take away a right. It isn’t just if they are going to send you to jail. Due process is bigger than that. The founders understood that the world is filled with fanatical, vicious half wits like yourself and took that into account in drafting the document.

      1. The Sixth has never applied to noncriminal trials. You’re going well beyond the Founders here, no?

        1. Yes it does. It does so in the form of due process being required. The 6th Amendment and specifically the right to confront your accuser is one of the basis for all due process. So every time due process applies, the concepts found in the 6th Amendment apply as well, though in the form of due process.

          1. “concepts found in the 6th Amendment ”

            Exactly.

            1. “concepts found in the 6th Amendment” sounds like a Kennedy opinion Bob. You should be ashamed.

              But regardless, concepts found is not the argument that Steven Calabresi is making.

              1. “sounds like a Kennedy opinion ”

                So? Such opinions used to be ok with you.

                “concepts found is not the argument that Steven Calabresi is making”

                We are fleshing it out for him.

                1. I’ve alway been quite outspoken that I have never liked Kennedy’s opinions. Muddy jurisprudence doesn’t help even when the findings come out I my side.

          2. You don’t break the 6th whenever you don’t apply proper due process, you break the 5th.

            1. Not to mention that due process applies only to deprivations of life, liberty, or property. If impeached and convicted, Trump won’t be executed or imprisoned. He will lose his job, and he has no property interest in it.

              1. We are not giving the person 63 million Americans voting for due process.

                Please go with that.

                1. Give it up. Due process is satisfied by an opportunity to be heard prior to any deprivation. There has been no deprivation, so coming public hearings easily satisfy that. The transcripts are available, relevant witnesses may be called, and witnesses cross-examined. Sometimes even post-deprivation hearings are sufficient. Either you don’t understand due process jurisprudence, or you don’t care to. Calabresi has lost any credibility as a legal analyst, and from now on he will only be correct by fortuity. A shame that he has decided to trash his reputation in service to partisanship or ambition for a judicial appointment.

                2. Bob, you can’t just make s**t up. What am I saying? Of course you can, and so can Prof. Calabresi. But it’s still making s**t up.

              2. Is emoluments a “property interest?”

              3. The president has a four year term of office, and removal mid-term can be only for cause. Sounds like a property interest to me. OTOH, what process is due (over and above oath or affirmation, a trial presided over by the Chief Justice, and a two-thirds threshold for conviction) is largely up to the House at the charging stage and the Senate at trial.

              4. RE: “If impeached and convicted, Trump won’t be executed or imprisoned.”

                He won’t? Not even if I smile when I ask, and say “pretty please”?

          3. “The 6th Amendment and specifically the right to confront your accuser is one of the basis for all due process.”

            This is a stupid thing to claim.

            The sixth amendment is expressly limited to criminal proceedings. It (by its own text) does not apply to all process.

            This is a laughable argument.

      2. John, there is no right to be president, not even after you have been elected. The president serves at the pleasure of the People, who can remove the president from office at any time. That is what the impeachment power is about.

        The People are sovereign. Which means, they rule at pleasure, their power is boundless, and it applies continuously. It also means that the Constitution, which is their creation, constrains the government, but not the sovereign People themselves, not even a little.

        1. I see what you did there. Nice.

      3. “we have due process and the right to confront witnesses every time the government is going to take away a right.”

        The thing about due process is that the accused doesn’t get to decide what process is actually due. The xixth amendment is clearly limited by its text to criminal proceedings, which impeachment inquiry is categorically not. Letting aside the laughable notion that being President is a right.

    2. For all the arguments here, no one is arguing that Steven Calabresi’s argument holds any water, right?

      It’s so embarrassingly incompetent, both as a matter of writing and as a matter of legal argument, that there is a lot of speculation that he didn’t write it at all.

      It is, after all, common practice nowadays for lobbyists for interest groups to ghostwrite op/eds, get someone prestigious to sign their name, and then plant those pieces in various outlets.

    3. “It fits into my general narrative about the right leaving facts behind”

      Partisans of both stripes have been burned by believing in “facts” not because they were true, but because they desperately WANTED them to be true. The big one for the R’s was the belief that we could conquer Iraq in a couple of weeks, and would be right to do so because Saddam had and wanted to use weapons of mass destruction against us. They WANTED these to be true, so they willfully ignored anything and anyone who suggested that they weren’t true.
      The wishful thinking on the D side tends to be that a wide majority of Americans agrees with them about major issues. (Not the R’s are immune to this one).

      But “leaving facts behind” is not confined to one partisan side.

  11. Unfortunately, Mr. Post’s general ignorance of the legal system is lacking.

    First, there is no case on point that the President lacks a 6th Amendment right to confront his accusers in the context of an impeachment investigation. Therefore, it is wrong to say the President definitely lacks such a right (it would also be wrong to say that the President definitely has such a right).

    Second, Mr. Post does not appear to understand that there are different clauses in the 6th amendment. The 6th amendment includes, for example, the right to a speedy trial, the right to an impartial jury, certain jurisdictional rules, the right to counsel, etc. Mr. Post has not shown that the standard for a “criminal offense” is consistent across all of these clauses (because they’re not). For his various “exceptions” to the 6th Amendment he cites to cases touching on various different clauses.

    Third, and perhaps most importantly, Mr. Post does not understand that impeachment is a political – as opposed to a judicial – remedy. The judiciary does not have plenary authority to decide whether actions are consistent with the U.S. Constitution.

    Mr. Post may be given for the final belief as it is unfortunately common among those with a legal education.

    1. He also fails to understand that impeachment is the deprivation of a right. It not only removes someone from office they lawfully hold, it also can ban them from ever holding public office again, which is also a right of every American citizen.

      You can’t even fire someone from a government job or take their welfare benefits without giving them due process. You sure as hell can’t take away their elected office and ban them from holding office without some measure of due process. Moreover, the Impeachment clause use of the term “trial” and the requirement that the President only be removed from office for “high crimes and misdemeanors” necessarily implies some level of due process. Otherwise, why would the drafters use the term trial? And only allowed removal for the commission of a crime?

      So the question is what level of due process is owed? The right to confront one’s accusers is about as basic and long standing a right in the Anglo American system as their is. If there is a more basic right of due process than to be able to confront your accusers I am at a loss to think of what it would be.

      Yes, the Senate and the House get to define what due process that President gets. And if they fail to provide him with any, it is difficult to see what redress he would have. The fact that the Congress can get away with something doesn’t mean they have the legal right to do it. Clearly, the Congress owes the President basic due process in this and that necessarily includes the right to confront the witnesses against him.

      It is pathetic that so many people who claim to be legal scholars need to be reminded of this. And Mr. Post has proven himself a first class hack for being in that group.

      1. He also fails to understand that impeachment is the deprivation of a right. It not only removes someone from office they lawfully hold, it also can ban them from ever holding public office again, which is also a right of every American citizen. . . . It is pathetic that so many people who claim to be legal scholars need to be reminded of this.”

        Greetings, newcomer (and ostensible legal scholar) from a world in which impeachment and conviction are indistinguishable.

        1. That is a completely nonsensical response. A criminal trial and conviction are in one sense two different things. That, however, says nothing about the need to respect due process in conducting that trial and the process that leads up to any conviction.

          Please do me a favor and only comment when you understand what is going on. People are trying to have a serious discussion here and your oddball injections into them makes that more difficult.

          1. “He also fails to understand that impeachment is the deprivation of a right. It not only removes someone from office they lawfully hold, it also can ban them from ever holding public office again, which is also a right of every American citizen.”

            Impeachment does not effect removal from office. Nor does it effect a ban. Nor does it constitute deprivation of a right.

            Other than that, though, great comment!

            (Do you claim to be a law school graduate?)

      2. Jubulent: More nonsense. I did NOT say that Trump can be denied due process in this proceeding – he can’t. But Calabresi’s post made a very specific claim: that Trump’s rights under the 6th Amendment have been violated. That is, quite simply, wrong as a matter of constitutional law. What due process might entail is another question entirely.
        And you write: “Second, Mr. Post does not appear to understand that there are different clauses in the 6th amendment. The 6th amendment includes, for example, the right to a speedy trial, the right to an impartial jury, certain jurisdictional rules, the right to counsel, etc. Mr. Post has not shown that the standard for a “criminal offense” is consistent across all of these clauses (because they’re not).”
        Please read the text of the 6th Amendment. It begins: “In all criminal prosecutions, the accused shall enjoy the right to …” and then it lists the various rights. But this can only be read in one way: ALL OF THE ENUMERATED RIGHTS apply in “criminal prosecutions” to “the accused.” If you have something (like impeachment) that is NOT a criminal prosecution, the Amendment is silent. Full stop, period.
        As for who is demonstrating “general ignorance of the legal system,” I’ll leave that to others to decide.

        1. If you admit that Trump has due process rights, from where would those rights come if not the Bill of Rights? If your argument is that Trump has the right to confront witnesses but that it doesn’t come from the 6th Amendment, that would seem to me to be an argument without any real force or effect and just be about mere semantics.

          1. Due process comes from the 14th and 5th. Not the 6th.

          2. “from where would those rights come if not the Bill of Rights”

            From God.

            Or from Nature if you are Jeffersonian.

            1. And when government violates those rights, you look to God or Nature to vindicate them for you, right?

        2. Why isn’t the House following precedent? You know Nixon, Clinton.

          1. Did Clinton follow Nixon?
            Is the House bound by last precedent?

            But the real answer is as the House said: to keep witnesses from lying convincingly, since they can’t see if others have contradicted them.

            Trumps people are expected lie more than Nixon or Clinton’s. Even under oath.

            One guy had to refresh his memory and do a humiliating 180 already.

            1. “Is the House bound by last precedent?”

              Maybe not, but by deviating they gave Trump supporters another good argument.

              1. “Another argument” should not be confused with “another good argument.” Those are two different things, Bob.

          2. They followed the Benghazi precedent written into the rules for investigations by the GOP. So why wasn’t the chant “leave her alone” instead of “lock her up”? You can arrest a person, search them, and seize their possessions on probable cause which may be established in a proper case by an anonymous tip and certainly one from a CI found to be credible. Investigating on that basis is not a due process violation. Due process is only required at some time prior to the deprivation. The defendant gets to cross-examine the witness at trial, not when the investigator takes a sworn statement from the witness. When you report a crime, the cops should say “wait here until we find the alleged perp and let him cross-examine you–its his due process right”? How ridiculous do you want to look?

      3. One wonders if the Senate could decide that it would not begin an impeachment trial unless the impeachment proceedings in the House gave the President all of the rights he would have had in a criminal trial.

        1. I would say they absolutely could. The Senate has the power to try whatever Articles of Impeachment the House votes out. As the trier of fact, the Senate necessarily has final say on the sufficiency of any Impeachment allegations against the President. They could just declare the Articles defective and send them back to the House in the same way a trial judge declares an indictment defective before trial.

          1. John,
            Sure. The Senate could say, “We won’t have a trial unless Nancy resigns as Speaker of the House.” Or, “No trial unless the House votes to fully fund the Wall.” I think the House and the Senate have pretty much full control over what rules they want and do not want to have for these proceedings. (Not including, of course, rules that would otherwise violate other parts of the Constitution. “We will not accept evidence in the impeachment hearing from Blacks and Jews.” etc etc.)

      4. John, impeachment is not removal. It does not “remove[] someone from office they lawfully hold”

      5. You can’t even fire someone from a government job or take their welfare benefits without giving them due process.

        False. When Trump fired Rex Tillerson, or Jeff Sessions, or John Bolton, or John Kelly, or Jim Comey, or Michael Flynn, or Anthony Scaramucci, or any one of scores of other people from their government jobs because Trump is too incompetent to run an administration, what due process did they get?

      6. Article 1 of the Constitution: “Each House may determine the Rules of its Proceedings”. Nothing about having to observe certain rules in serving articles of impeachment. This is basic constitutional law.

      7. “He also fails to understand that impeachment is the deprivation of a right.”

        This is also a laughable argument. impeachment is in no way the deprivation of a right.
        Conviction in the Senate would be deprivation of a right, IF being President were a right, which is is not. But if you are of the opinion that being formally accused of a crime is a deprivation of a right, it is clear that your opinion is utterly without value.

    2. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him.”

      FFS it’s in the text.

    3. First, there is no case on point that the President lacks a 6th Amendment right to confront his accusers in the context of an impeachment investigation. Therefore, it is wrong to say the President definitely lacks such a right

      My flippant response is to say that this is the equivalent of arguing that there is no case on point that the president lacks a 3rd amendment right to free sushi in the context of an impeachment investigation, so therefore it is wrong to say that the president definitively lacks such a right.

      My serious response is to say that jubulent is simply ignorant of the caselaw.

  12. So. Could some one tell me why the House is not following precedent where 6th Amendment issues were controlling (or at least important) at this stage.

    1. I’m quite sure the Sixth was not cited as controlling either of those past impeachments.

      1. The 6th was not cited. If you look at the way things were done, it was in effect.

    2. Sure: you’re mistaken. You’ve been misled by talk radio or MAGA twitter. That didn’t happen.

  13. Trump is being charged with a high crime, today Democrats are suggesting Ukrainian bribery. That sounds like a criminal trial to me.

    1. Jesus, where did this get linked?

      Criminal or not is not defined by magic words.

      1. It is a good thing bribery is not a criminal act then.

        1. MSimon,

          WTF are you trying to say?

          Bribery is a crime.

          The fact that Trump has been alleged to have attempted to bribe/extort Ukraine and will likely be impeached on those grounds, does not make anything currently happening a criminal trial. The trial in the Senate will also not be a criminal trial as, among other things, there is no danger of imprisonment. Imprisonment would require an actual criminal trial after Trump’s removal from office. That the articles of impeachment may include allegations of a crime does not make this a criminal trial. If Trump did shoot someone on 5th Avenue and was impeached for murder, the Senate trial to remove him from office would still not be a criminal trial.

    2. The impeachment is the charge. Trump hasn’t yet been charged. If and when the House formally charges the President via impeachment, then the trial will be held in the Senate.

      This really isn’t that hard to understand.

      1. “This really isn’t that hard to understand.”

        It is if your source(s) of information are badly distorted, if not active misinformation.

  14. I find it disappointing how quickly the discussion in this forum dissolves into politics and irrelevancy. The question at hand is whether the process the House is now engaged in is in violation of the 6th Amendment, not whether Trump is guilty of whatever. Post contends that the 6th does not apply because it concerns only criminal proceedings. This seems incorrect to me. Surely, however, he is correct that the House impeachment inquiry, if that is what it is, is not a criminal procedure as commonly defined. Nevertheless, the Constitution says that impeachment should be undertaken when the President has committed high crimes and misdemeanors — which are criminal terms, am I right? But the House is not the judge or the jury, only a form of prosecutor. It’s silly to suggest that it is a grand jury, because the members of the committee involved in the investigation will vote on the floor, so they are not empaneled impartial jurors. It’s political committee, performing a mix of judicial and political functions. What rules should apply? One can say, as the Democrats do today, whatever rules we can get away with. But that flies in the face of tradition and, I think, law. The House is also bound by the Constitution, and the members have sworn an oath to uphold the Constitution. So, back to the point, does the 6th apply? If it’s not high crimes and misdemeanors, i.e., criminal, is it then a civil violation? Well, an accused has rights under civil procedures too, non-judicial or judicial, including Notice, Hearing, Impartial Tribunal, Confrontation and Cross-examination, Discovery, Decision on the Record, and Counsel (copied from the Legal Information Institute). The rights awarded under a civil procedure seem awfully close to what is granted under a criminal procedure, guaranteed by the 6th Amendment. And, further, the language of the Fourteenth Amendment requires the provision of due process when an interest in one’s “life, liberty or property” is threatened. It would be difficult to state that the current House proceedings do not threaten the President’s interests, broadly understood as liberty and property. In fact, it would be offensive to state that he has no interest in the proceedings. So, it would seem that the 14th Amendment provides protection for him — and the 14th, as we know, incorporates the entire Bill of Rights, at least against the States. But does it also bind the House? Well, back to the oath they take when they become members — to uphold the Constitution etc. etc. Does that mean that they are bound by the 14th and the 6th Amendments? I find that a very convincing argument. They are not free to make up their own wholly political, quasi-judicial process. They are bound by the same rules that apply to all defendants, in criminal as well as civil procedures. What they are doing today is unconstitutional and shameful — and I take absolutely no stance on whether the President was wrong in his conversation with the Ukrainian folks. That should be totally beside the point for the current issue of whether the 6th applies or not.

    1. The precedents which Professor Post cites disagree with you.

    2. Maximus,

      “Post contends that the 6th does not apply because it concerns only criminal proceedings. This seems incorrect to me.”

      Read it. The 6th Amendment expressly applies to: “In all criminal prosecutions.” Not all proceedings, not all legal proceedings, not all quasi-criminal proceedings. Just criminal prosecutions.

      “If it’s not high crimes and misdemeanors, i.e., criminal, is it then a civil violation?”

      This is kind of nonsensical. That the conduct warranting removal may include crimes does not transform the proceedings into a criminal prosecution, for all the reasons Post states. It is an impeachment and trial in the Senate for removal. It is not a criminal prosecution or a civil proceeding. It is a something else specified in the Constitution.

      “Notice, Hearing, Impartial Tribunal, Confrontation and Cross-examination, Discovery, Decision on the Record, and Counsel (copied from the Legal Information Institute).” Yeah, that’s once formal charges (or a civil lawsuit) have been filed. The House is currently conducting an investigation, not a trial. They will eventually vote on whether to impeach (presumably) and then the President will be formally charged. He will receive notice, a hearing, a tribunal (composed of Senators, so cannot possibly be impartial but that is expressly contemplated by the Constitution), there will be confrontation and cross-examination of witnesses, a decision on the record, and counsel. I doubt there is formal discovery, but Trump will know the identity of all the witnesses and have access to all of the documents used in the Senate trial. What is your process objection? That we should treat this as two trials, one in the House and one in the Senate? But that just isn’t what the Constitution says. E.g., “The Senate shall have the sole Power to try all Impeachments.”

      In short, you seem to misunderstand what is happening. The House is currently investigating. They may eventually charge. The Senate will conduct the trial where the issue of the protections you discuss would be relevant. In the House, while there undoubtedly are some due process concerns, they don’t involve cross-examining witnesses during an investigation. Criminals don’t have that right nor do civil litigants. It is only once official charges are lodged or, in the civil context, an actual lawsuit is initiated that the accused begin to have the rights you are arguing apply here. The articles of impeachment are the charges. Until that happens, this isn’t a trial. It is an investigation and grand jury-like proceeding.

    3. You say: “they are not free to make up their wholly political, quasi-judicial process”. The Constitution says: “Each House may determine the Rules of its Proceedings”. Checkmate!

      1. Utter BS. Obviously, the House is bound by the Constitution. It does not have the power to set aside constitutional requirements regarding due process. The 14th, 6th, and 5th Amendments cannot become inoperative because a majority of House decides to set them aside. Sot, try again, will you?

    4. PS the word “interest” does not appear in the 14th amendment. So your rhetorical footwork about him having an “interest in the proceedings” is completely irrelevant. You also make a false dichotomy of assuming that all proceedings are either civil or criminal, when the whole point of impeachment is due to the fact that the President is in a highly anomalous position as head of the DoJ, and (as others have pointed out) he can’t be fined, executed or imprisoned as a result of impeachment.

      1. Good quibble, conhgratulations. Here’s the relevant text: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” I think that encompasses “interest”, thank you. And I have not asserted that impeachment is a purely criminal/civil procedure, but have stated that it’s clearly also a political process. The issue is whether the political element supersedes constitutionally guaranteed procedural rights, as commonly offered in both civil and criminal cases. I don’t think it does.

  15. Former copy-editor and proofreader suggests:

    In the phrase: “…but Mr. Trump is not a “criminal defendant” in the impeachment proceedings,… “, strike “in the impeachment proceedings” and replace with “yet”.

    Brevity is the soul of wit, you know.

  16. Good lord, people are defending the op-ed.

    I don’t know what I was expecting.

    At least it seems to largely be new people who have wandered in from somewhere.

    And Bob.

    1. Well, there are so many old farts just passing gas on this blog that a small breeze of fresh air might be welcome.

  17. Symbolism

    Biologically, cerebral-environmental dynamics largely work off patterns. Patterns can become symbolselciting emotions and occasioning behaviors; e.g., national flags. Together, President Trump’s likely impeachment and possible conviction represent a symbol — a symbol of the state of the Union.

    Admittedly, the entire procedure is political not legal. “Due process” is not mandatory; nevertheless, the case of “abuse of power” against him falls far short of “beyond a reasonable doubt” or even “preponderance of evidence”. The alleged victim denies being a victim. No, this tragic, political farce symbolizes a fragmenting, declining nation on fire — a nation committing suicide.

    “An autopsy of history would show that all great nations commit suicide.” -Arnold Toynbee (1889-1975)

    For further discussion, visit “Trump The Symbol” at …
    https://www.nationonfire.com/trump-impeachment/ .

    1. “No, this tragic, political farce symbolizes a fragmenting, declining nation on fire — a nation committing suicide.”

      Agreed. We pretty much all agree on that. I just think there is a significant dispute about which part is the tragedy.

      It is either:

      1. Trump turned out to be even more incompetent and corrupt than even the most paranoid among us imagined and Trump has been caught obstructing justice AND he has been caught abusing the office of the President for his personal gain, but about 40% of the electorate is mostly outraged that Trump has to rely on Rep. Jordan and Nunes to blow smoke up the nation’s ass rather than having his own attorney do it for him; or

      2. Trump turned out to be more incompetent and corrupt than even the most misguided of us hoped, but about 60% of the electorate still wants him out of office before he can finish destroying all of the institutions on which the continued functioning of our nation depends.

      True fact – Prior to 2016, one of his now-supporters actually said to me about the nation: Burn it all down.

  18. How does the assertion that “it would certainly be an obvious and egregious violation of the constitutional separation of powers were Congress to undertake a true criminal proceeding, a function reserved to the Judiciary” square with the existence of an inherent contempt power on the part of Congress? As the Court noted in Jurney v. MacCracken, 294 U.S. 125 (1935), the use of that power to punish a completed act goes back to at least 1795.

    I agree that impeachment is not a criminal proceeding, but this argument goes a little too far for me.

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: November 12, 1975

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11/12/1975: Justice William O. Douglas resigns.

Justice William O. Douglas

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  1. Douglas made his name as a trustbuster at the end of FDR’s second term. He clearly had his eye on the White House, so Roosevelt, who didn’t like men with a lean and hungry look, appointed him to the Supreme Court, an offer Douglas couldn’t quite turn down. (Roosevelt did the same thing with James Byrnes, who eventually resigned from the Court because he found it too boring.) According to Ronald Radosh’s famous book on the Rosenbergs, Douglas, though aggressively “left”, was also strongly anti-communist, and for a long time refused to intervene in the Rosenberg case because he felt the communist party wanted the Rosenbergs to be martyrs, and the party’s whole legal strategy was to accomplish that goal. Later, according to Radosh, he changed his mind, but the rest of the Court, except (unsurprisingly) Frankfurter, the lone Jew on the Court, “rammed through” the Rosenbergs’ execution in collusion with Attorney General Brownell.

  2. Probably the most inept legal mind ever to sit on the Court. No justice ever cared less about doctrine, or giving plausible guidance to lower courts, lawyers, and clients, or creating rules that would be workable, than Douglas.

    1. At the time Roosevelt appointed him he wanted results not reasons, and he got what he wanted.

  3. He would have resigned right after his stroke but the Congressman who had tried to impeach him (Gerald Ford) was now President and would pick his successor.

    As for his opinions, he was considered left wing, but most Americans now agree with them.

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DACA

Why DACA Is Legal

The Trump administration's justification for rescinding DACA relies heavily on the claim that the program is illegal. But it's not.

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Tomorrow, the Supreme Court will hear three consolidated cases challenging the Trump administration's decision to rescind DACA, an Obama administration policy suspending deportation of some 800,000 undocumented immigrants who came to the United States as children. DACA allows such migrants (often referred to as "dreamers," after the Dream Act, which failed to pass Congress) to stay in the U.S. as long as they arrived in the  country when they were 15 years old or younger, were 30 or younger when the program began in 2012, have not been convicted of any crimes as of the time they apply for the program, and have either graduated from a U.S. high school, are currently enrolled in school, or have served in the armed forces.

As co-blogger Josh Blackman (a longtime critic of the legality of DACA) points out, the Trump administration's position in these cases relies heavily on the notion that DACA had to be rescinded because it is itself illegal. For political reasons, the president did not want to  give the impression that he actually favors deporting the Dreamers (which would be an extremely unpopular position). Thus, he decided to hide behind the theory that his hands are tied by legal considerations. As Josh recognizes with admirable candor, this framing of the issue makes the administration's policy "nearly impossible to defend." I agree, with one slight modification: If this really is the only justification, I would strike out the "nearly" in that sentence.

While the president's motives for relying on this argument were probably political, I don't doubt that many conservatives, including some administration officials, sincerely believe that DACA is illegal. But, regardless of the reasons for putting it forward, the claim that DACA is illegal is badly wrong. I summarized the reasons why in a 2017 post from which much of what follows is adapted:

Quite simply, DACA is within the scope of presidential authority because it does not change the law, and does not legalize anything that would otherwise be illegal, without specific authorization from Congress.

Critics attack DACA on the grounds that Obama lacked legal authority to choose not to enforce the law in this case. This critique runs afoul of the reality that the federal government already chooses not to enforce its laws against the vast majority of those who violate them. Current federal criminal law is so expansive that the majority of Americans are probably federal criminals.

That includes whole categories of people who get away with violating federal law because the president and the Justice Department believe that going after them isn't worth the effort, and possibly morally dubious. For example, the feds almost never go after the hundreds of thousands of college students who are guilty of using illegal drugs in their dorms.

John Yoo contends that there is a difference between using "prosecutorial discretion" to "choose priorities and prosecute cases that are the most important" and "refusing to enforce laws because of disagreements over policy." But that distinction makes little sense. Policy considerations are inevitably among the criteria by which presidents and prosecutors "choose priorities" and decide which cases are "the most important."

One reason the federal government has not launched a crackdown on illegal drug use in college dorms is precisely because they think it would be bad policy, and probably unjust to boot. It did not even do that during the reign of Attorney General Jeff Sessions, the hard-core drug warrior who also initiated the rescission of DACA on the grounds that the program exceeds the bounds of executive discretion.

Yoo and others also argue that prosecutorial discretion does not allow the president to refuse to enforce an "entire law," as opposed to merely doing so in specific cases. But Obama has not in fact refused to enforce the entire relevant law requiring deportation of illegal immigrants. He has simply chosen to do so with respect to people who fit certain specified criteria that the vast majority of undocumented migrants do not meet.

Most of the points I made in this 2016 article defending the legality of Obama's later DAPA policy (which was rescinded by Trump in June 2017) also apply with even greater force to DACA, since the latter is a much more limited program. Wide-ranging presidential enforcement discretion is unavoidable in a system where there is so much federal law and so many violators that the executive can only target a small fraction of them. In the 2016 article, I explain why presidents have the power to exercise their discretion systematically as well as on a "case-by-case" basis.

Systematic exercise of discretion by the president should be particularly attractive to conservative believers in "unitary executive" theory, which holds that the president should have nearly unlimited authority to set policy priorities for his subordinates in the executive branch. Often, issuing systematic instructions may be the only way for the president to exercise effective control over the sprawling executive law-enforcement apparatus and ensure that it is following his policy priorities.

I myself have growing doubts about the validity of unitary-executive theory. In my view, Congress should, at least in many instances, be able to constrain presidential control over executive officials. But even if that is true, Congress has not in fact adopted any laws requiring the president to prioritize deportation of the "Dreamers" over other law-enforcement goals, or forbidding him from issuing categorical instructions giving absolute priority to other objectives.

The Trump administration and other DACA critics claim that the policy goes beyond enforcement discretion, because it offers "affirmative benefits" to recipients, such as the right to work legally in the United States, and accrue "lawful presence" time in the US. But the policy of giving DACA recipients work permits actually does have congressional authorization, based on a 1986 law that specifically permits employment of aliens who are "authorized … to be employed … by the attorney general."

The grant of "lawful presence" to the immigrants covered by DACA is perhaps the most questionable part of the policy. But while this may seem like a big deal, in reality "lawful presence" does not actually legalize the presence of any otherwise illegal migrants. For the most part, it merely reiterates the executive's discretionary decision not to deport the migrants covered by the order.

It does, however, also allow them to accrue time for the receipt of Social Security and Medicare benefits that, however, they are unlikely to ever actually collect unless their status is genuinely legalized at some point in the future, and they remain in the US until after retirement age.

Moreover, the "lawful presence" element of DACA  could easily have been excised separately, without affecting the other, far more important aspects of the policy. If "affirmative benefits" were the true target of Trump and Jeff Sessions' ire, they could easily have taken this approach. But they instead chose to rescind the entire program.

The fact that DACA is an exercise of executive enforcement discretion also undermines Josh Blackman and Ilya Shapiro's creative arguments that it is illegal under "non-delegation" principles, or because it attempts to resolve a "major question" that Congress would not have left to executive determination.

Like Josh and the "other" Ilya (see my handy guide to distinguishing the two of us), I believe the Supreme Court should do more to enforce the "non-delegation" doctrine, which prevents Congress from engaging in excessive delegation of legislative authority to the president. But enforcement discretion is not a legislative power. It's an inherent power of the executive itself. Thus, there is no delegation involved, and therefore no reason to worry that too much power has been delegated.

The same point applies to the "major question" canon, which holds that courts should not interpret federal laws to leave to the executive important decisions about the scope of what is or is not banned by the statute in questoin. The "major questions" at issue are questions about what sort of conduct is legal under the statute, not which lawbreakers will be prosecuted and which let off the hook by enforcement discretion.

Under the doctrine, the executive is denied the power to decide "major questions" about the meaning of a law. But DACA does not do that. It concerns enforcement priorities as between different violators of a specific federal law. It does not offer any new theory about the meaning of that law, much less resolve any "major question" about that meaning.

The extent of presidential discretion over law enforcement revealed by DACA does raise troubling issues. In a world where federal law is so extensive that not only undocumented immigrants, but most native-born Americans, have violated federal law at one time or another, the executive's ability to pick and choose which of the many lawbreakers to go after is a menace to the rule of law.

But that menace won't be ended by getting rid of DACA. Doing so will merely shift the discretion in question to lower-level officials, not eliminate it. The only effective way to truly deal with the problem of excessive executive law-enforcement discretion is to cut back on the immense extent of federal law itself.

The Trump administration could prevail in the DACA cases even if the program is not illegal. The Supreme Court might conclude that Trump still has the authority to repeal the program purely on policy grounds. But that option is, at the very least, made more difficult by the administration's failure to present a policy rationale, except at the eleventh hour. Even now, the administration still hasn't put forward a theory of why it's actually a good idea to subject DACA recipients to deportation, as opposed to claiming that rescinding DACA is desirable for such ancillary reasons as "sending a message" that laws will be enforced. That rationale that could justify pretty much any decision, since virtually any policy could be interpreted as "sending a message" to some group or other.

The Court could also rule that decisions to rescind a enforcement policy are inherently unreviewable, and that therefore the administration can essentially do whatever it wants in this area. But doing so could set a dangerous precedent for future abuses of executive power.

The justices could even conclude that the argument that DACA is illegal is "good enough for government work," even if it is badly wrong. It could perhaps still be enough to pass muster under the Administrative Procedure Act, the law under which the DACA cases are being litigated. I will leave this and other APA-related issues to commentators with greater relevant administrative law expertise.

It is, therefore, entirely possible that the Court will find a way to rule in favor of Trump without ruling that DACA is illegal. Nonetheless, the administration has put a lot of its eggs in the "DACA is illegal" basket, even if not quite all of them. Those eggs richly deserve to be crushed.

NOTE: This post addresses only a key legal issue at stake in the DACA cases. I considered the moral and policy questions raised by DACA here. It is telling that those issues are sufficiently one-sided that even an administration as deeply hostile to most immigration (including legal immigration) as this one wants to avoid looking like it actually wants to deport the "dreamers."