The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent | Est. 2002

The Volokh Conspiracy

Due Process

Federal Judge Concludes UConn Sexual Assault Hearing Likely Violated Due Process,

orders university to temporarily reinstate accused student for Spring semester.

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From Doe v. Univ. of Connecticut, decided Thursday by Judge Michael P. Shea (D. Conn.):

This case challenges the fairness of disciplinary proceedings brought against Plaintiff John Doe by the University of Connecticut ("UCONN") for alleged sexual assault, culminating in the Plaintiff's two-year suspension from the University…. As set forth herein, the Court grants the Plaintiff's motion for a Temporary Restraining Order {allow[ing] him to "rejoin the class of 2020" and register for Spring classes}.

[A.] Irreparable Harm

Based on the facts alleged in the complaint, the Plaintiff's affidavit, and the documents submitted in support of the motion, it is clear that the Plaintiff will suffer irreparable harm if he cannot enroll in UCONN this semester. The January 15, 2020 letter from UCONN to the Plaintiff states that his suspension is "effective from December 16, 2019 through January 1, 2022." Though he may apply for readmission in 2022, his "[r]eadmission to the University is not guaranteed" and "reacceptance into your school or college is at the discretion of the school or college." In addition, "[a] notation of Suspension shall be placed on [his] official transcript until graduation" and "[t]he University of Connecticut will not accept credits earned at another institution during a period of suspension."

In his affidavit, the Plaintiff explains that he was "majoring in Management Information Systems in the UConn business school" and "had only one semester to go before graduating." He was in good academic standing, with a 3.5 GPA and an unblemished record, and he held a job on campus. After the suspension, even if he is readmitted to UCONN, he would "still have to reapply to the business school to complete [his] degree."  He avers that "[w]ith a finding of responsibility for a sex crime and a two-year gap in [his] educational record … [his] educational and career prospects are forever changed."

Because UCONN "will not accept credits earned at another institution during a period of suspension," "this two-year suspension stops [his] education dead in the water" and guarantees that he will have a two-year gap in his education.  He would have to explain that gap—and his sanction for a sex offense—to any educational institutions or jobs he applies for in the future.  He states that he was "beginning to apply for internships which are available only during your senior year," and that "UConn's actions against [him] have kept [him] from applying to internships, let alone [his] first post-college job[,] which [he] planned to take after graduating in spring 2020."

For a college student poised to graduate in a few months, it is highly likely that a two-year suspension and a sanction for sexual assault would indeed "forever change[]" the trajectory of his education and career. If he is not permitted to enroll in the Spring 2020 semester, he would need to explain a gap on his résumé in future applications to schools or jobs. He would also need to explain the suspension notation on his UCONN transcript, and a truthful explanation would seriously hinder his prospects. During the January 23, 2020 telephonic status conference, counsel for the defendants did not offer any argument that the harm imposed by a two-year suspension would not be irreparable. I find, therefore, that the Plaintiff has demonstrated irreparable harm.

[B.] Clear Likelihood of Success on the Merits

The Plaintiff alleges, among other claims, that UCONN's disciplinary proceedings violated his right to due process under the Fourteenth Amendment. On the record before the Court, the Plaintiff has met the heightened requirement for a mandatory injunction and has shown a clear likelihood of success on his due process claim….

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  1. But…but…but..he is a self-identifying cis-gendered white male! That alone PROVES his guilt. #allwomenalwaystellthetruththewholetruthandnothingbutthetruthsohelpthemGaia

    1. Your capital G and lack of capital W is telling.

  2. This opinion shows in absolute terms why a university should not be in the adjudication business. Universities should restrict their activities to teaching, research and fielding good football and basketball teams (not necessarily in that order). They have no understand or expertise or any basis for engaging in a quasi-judicial process.

    If a university does wish to undertake an investigation and hearing that could lead to sanctions against an individual whose conduct they feel warrants expulstion or suspension, they should outsource that investigation and process to a non-affiliated third party group that can conduct the process in a fair, impartial manner that protects the rights and identities of all parties.

    But this is unlikely to happen, given the arrogance of university administrations that feel they, and they alone, know everything and what is best all around.

    Thanks to Prof. Volokh for the post.

    1. Oh, but they hire the absolute best graduates of gender studies programs to handle these adjudications. And when they constantly get defeated in court the answer will be to hire even more of the best gender studies graduates with increased powers and oversight.

    2. If the woman believes that she was raped, she should report it to the police. They’re equipped to investigate crimes and the courts are equipped to adjudicate them.

    3. Except for the clear and relevant point that University of Connecticut has a law school. That makes their actions in this case, at best, willfully negligent of the facts of law.

      The judge’s description of the case is reminiscent of the Star Trek Cardassian court, where the verdict is given first and then the trial begins.

  3. So, did this turn out this way because UConn is a state school, and therefore at least vaguely governmental? Or is this sort of result likely to occur even in cases invovling purely private universities as well, assuming sufficiently similar facts?

  4. Is there any way that this ruling can be applied in similar situations at other universities? It seems that misuse of Title IX has become a nation-wide trend to either get revenge for whatever, or to be able to look like a victim if the female gets pregnant (it seems that pretty much all cases have been females making the charge).

    Also, due process seems to be just two words that mean nothing to the administrators responsible for adjudicating the complain. Almost always it appears that male-bad/female-good is the mantra, and rarely does the defendant get to confront the accuser or present a suitable rebuttal.

  5. White man = guilty, guilty guilty in the eyes of a liberal administrator

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Education

The Montana Blaine Amendment Case and the Need for a Consistent Approach to Discrimination on the Basis of Religion

Conservatives want courts to consider the governments' bigoted motives in enacting anti-Catholic Blaine amendments, but not when it comes to Trump's travel ban. Liberals tend to be inconsistent in the opposite way.

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James G. Blaine, the 19th century politician who inspired the Blaine Amendments.

 

On Wednesday, the Supreme Court heard oral arguments in Espinoza v. Montana Department of Revenue, a constitutional challenge to Montana's state constitutional Blaine Amendment, which forbids the use of public funds to pay for instruction at any religious school. The plaintiffs argue that Blaine Amendments are unconstitutional because they discriminate on the basis of religion. One way in which they do so is by barring religious schools from receiving public funds and benefiting from vouchers given to students even though otherwise similar secular schools remains eligible to do so. But another reason is that the various state Blaine Amendments were enacted in the late 19th century as part of a wave of anti-Catholic bigotry.

On their face, the Montana Blaine Amendment and its cousins enacted in numerous other states are neutral as between different religious groups. They ban "any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination." But, in reality, the main motive behind them was specifically to prevent Catholic schools from receiving any form of state assistance, even as public schools routinely promoted Protestantism in various ways.

For years, conservatives have argued (correctly in my view) that this bigoted motivation makes Blaine Amendments unconstitutional. This issue also features prominently in the briefs and oral argument in Espinoza. For example, Justice Brett Kavanaugh, a longtime critic of Blaine Amendments, emphasized during the oral argument that these laws were "rooted in—in grotesque religious bigotry against Catholics." The Trump administration's amicus brief in the Espinoza case points out that "the Blaine provisions have 'a shameful pedigree' and were 'born of bigotry'"as a way of distinguishing them from other limitations on state funding for religious education that the Supreme Court had previously upheld. By contrast, liberal defenders of the Blaine Amendments argue that the bigoted motivations behind their enactment should not lead to their invalidation under the First Amendment and Equal Protection Clause today.

At the same time, however, most conservatives vehemently rejected scrutiny of decision-maker motives in the 2018 travel ban case, despite the fact that Trump's anti-Muslim motivation for barring citizens of several Muslim-majority nations from entering the US, was at least as blatant as the anti-Catholic bigotry behind the Blaine Amendments. The alleged security rationale for the travel ban was a transparent fraud.

In a recent speech before the Federalist Society, Attorney General William Barr used the travel ban and other cases against his administration as examples of how courts should not be allowed to scrutinize political decision-makers motives. Yet, for some reason, the Attorney General failed to instruct administration lawyers to avoid motive-based arguments in their amicus brief in Espinoza.

Many liberals display similar inconsistency in reverse. They were outraged (correctly in my view) when the Court refused to give more than minimal consideration to Trump's bigotry in the travel ban case. But they would like the justices to overlook the  motivations behind the Blaine Amendments.

I decried this inconsistency in a 2018 post, as did liberal Harvard law professor Noah Feldman, in a column written around the same time. Sadly, our admonitions have mostly fallen on deaf ears.

Cynics might say that all of this is really just a matter of whose ox is being gored. Many conservatives are willing to turn a blind eye to religious bigotry when the targets are Muslim refugees and would-be immigrants. Many on the left are happy to do the same when the likely result of striking down Blaine Amendments would be to allow school choice programs that include theologically conservative religious schools that promote values many on the left dislike, or even abhor.

Such cynicism may well be justified in some cases. But I hold out hope that many of those who hold such contradictory attitudes do so in large part because they simply haven't considered the possibility that there is a tension between their views on the travel ban case and their positions on Espinoza. More careful reflection might perhaps lead them to reconsider.

One possible way to resolve the contradiction is to take Bill Barr's position more seriously than he seems to do himself, and consistently abjure judicial consideration of the motives behind government policies. If a law or regulation does not discriminate on its face, that it must be upheld. But doing so would open the door to bigoted and discriminatory government policies on a wide range of fronts, and would undermine effective enforcement of numerous constitutional rights.

Like Noah Feldman, I instead advocate that courts should allow consideration of motives in both cases, and consistently strike policies that were enacted for constitutionally impermissible purposes, and the evidence indicates they would not have been put in place otherwise. I outlined the reasons why in some detail in my 2018 post on this subject, and in various other writings on the travel ban case, and its relationship to religious liberty claims favored by conservatives, such  as the Masterpiece Cakeshop case decided just before the travel ban ruling. Elsewhere, I have also rebutted claims that immigration policy, as in the travel ban case, should be exempted from scrutiny of illicit motives that applies to government policies in other areas.

Judicial review should be a strong bulwark against religious discrimination by the state regardless of whether the victims are Muslim migrants (the travel ban), Catholics (the Blaine Amendments), or theologically conservative Protestants (Masterpiece Cakeshop). And bigoted policies should be struck down regardless of how the left and the right may feel about the groups they target. We have not yet fully realized this ideal, and all too many people seem willing to ignore it when it seems convenient to do so. But it doesn't have to be that way.

NOTE: The plaintiffs in the Espinoza case are represented by the Institute for Justice, which which I have a longstanding relationship, and which I have done pro bono work for in a number of other cases. I do not, however, have any involvement in this one.

 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Montana’s amendment was adopted in 1972 under an different set of justifications than the anti-Catholicism of other states’ similar amendments. Even if the reasoning in this post is correct, it doesn’t apply to the Montana case.

  2. Yeah I find this a bit disingenuous even though I wanted to agree with it. The motives of those passing bills in the 19th century and early 20th centuries carry no water with anyone. No one in the mainstream ever makes the argument that minimum wage laws should be abolished because the original motives for them were racist. The same is mostly true for drug prohibition and gun regulation. I think you’d have been better off either comparing the Blaine Amendment to those or Trump’s travel ban to another law that was recently passed with dubious motives.

  3. I don’t buy your argument.

    Blaine Amendments should fail because they explicitly discriminate against religion in general, even if they were in fact aimed primarily at Catholics. Something tells me that Sen Blaine would not have been a big fan of subsidizing Madrassahs or Yeshivas either, but that is for another day.

    However, they would withstand challenge if they had banned subsidizing any non-public school, regardless of the legislators’ underlying motivation.

    1. Yup, Somin just ignored that point. You don’t need to go into motivations when Blaine amendments on their face discriminate against ALL religion.
      Now to what extent that is allowed by the 1st Amendment is debatable. After all, the Establishment Clause in some ways discriminates against religion. OTOH, the Free Exercise Clause forbids such discrimination. So the two have to be harmonized.
      But nothing requires one to examine the motivations here to find that the law is disciminatory.

  4. With all respect to Mr. Somin (and others who believe motives ought to be examined), the discernment of motives behind enacted law is a fool’s errand. Who’s motive do we examine, each legislator who voted “yea, all legislators, the staff who likely wrote the legislation? And, how do we assess motive? By their public statements, or private statements? Or what something else thinks they meant? Laws are the expression of each legislature that enacted them. They often represent compromises, trades and all sorts of deals. Judges are not trained psychologists or mind-readers. They understand language and, at their best, can reasonably determine what the words of the statute means.

    1. For what it’s worth, I agree. When one starts looking at the legislative debates and floor speeches, it get even murkier, because a politician will often say and imply things that the law does not actually entail, as a form of re-election signaling.

  5. The cases are apples and oranges.

    Assuming, arguendo, that there was religious animus in the travel order, it wouldn’t matter, because a non-U.S. citizen in a foreign country is not entitled to protections of U.S. non-discrimanation law under the First Amendment or otherwise. Congress has plenary power over immigration, and had delegated some of that power to the President in this case.

    When it comes to domestic legislation, however, federal and state lawmakers are bound by the strictures of the Constitution, which forbids religious discrimination per the First Amendment.

    1. Good point, I didn’t think of that.

    2. FD, I disagree. Constitutional rights have two components; the right of the individual to not be discriminated against, and the duty of the government not to discriminate. Even if I agree that a non citizen has no (or at least far fewer) rights, the government is still precluded from preferring one religion over another regardless of context. And for several very good reasons.

      1. I think the issue with this line of reasoning, is that despite Trump’s supposed animosity towards Muslims, he didn’t ban travel for citizens of all Muslim majority countries, and he also banned travel for citizens of countries that aren’t Muslim majority.

        As I recall, the cited issue was a lack of sufficient background and data control regarding those country’s immigration departments. Now, maybe that’s all just a cover for Trump’s anti-Muslim bigotry, but then we’re back to parsing people’s internal motivations for things.

        And obviously, as a crazy-as-a-loon libertarian, I’d prefer that no country exercise that level of monitoring over their citizens, including the US, but that’s sadly not the planet I live on.

  6. Do you also feel that a person who didn’t see a problem with the so-called “Muslim ban” but thinks that religious schools (even Muslim schools) should be able to recieve the same funds from the state as non-religious schools?

    1. Sorry. No edit button. My question should have ended with “…is a hypocrite?”

    2. As a point of order the Montana Supreme Court didn’t say that. In fact in fully acknowledged that is unconstitutional. But that means there are two ways to get rid of discrimination a) allow funding to religious schools or b) not allow it for secular schools. They chose the latter because that is consistent with BOTH the 1st and Blaine Amendments

  7. Also, your approach would allow some laws and executive rules to be allowed or disallowed based upon who was in office.

    No matter how pro open borders you are I don’t see how even you could defend that, Ilya.

    1. He does not openly defend that, he advocates it. He acknowledges that the very same “ban” would Constitutional if promulgated by the Obama Administration, but must be struck down as unconstitutional when promulgated by the Trump Administration.
      And he fails to see how such a position undermines the rule of law and breeds contempt for the judiciary.

      1. As ever, I hope I’m never in a court of law for anything lest I end up quoting Transformers: The Movie.

        “Silence yourself or we will hold you in contempt of court.”

        “I have nothing but contempt for this court!”

        😀

  8. Blaine Amendments to me are not unconstitutional on their own. They are only unconstitutional if it actually causes a discriminatory effect. Here that isn’t the case. The Montana Supreme Court said that the Blaine Amendment prevents the benefit to religious schools and since that causes discrimination it can’t be used for secular schools either. Therefore there is no discrimination. The Amendment restricts what the legislature can do for both religion and secular. We don’t want benefits going to religious uses so you can’t do that and also can’t give those benefits to secular institutions unless you can do it without discrimination. That is perfectly consistent with the 1st Amendment.

    1. This is a perfectly valid position.
      But I can see a counterargument. The Montana legislature said, we want a benefit (actually a tax credit) to be allowed for all private schools, religious and secular. That, IMO, is perfectly allowed by the 1st Amendment.
      The Montana Supreme Court then struck that down because of Montana’s Blaine amendment. But, then faced with the 1st Amendment, they had to come up with the solution they did — no tax credit for any private school.
      So their ruling was based on resolving a tension between two provisions, one of which (the Blaine amendment) is, arguably, unconstitutional under the federal 1st Amendment.
      If the Blaine amendment is unconstitutional, then it should have played no part in the Montana Supreme Court’s consideration at all — it had no legal validity. That would have left only the statute and the 1st Amendment, and the statute upheld.

      1. I guess my issue with that is the notion that a Blaine Amendment on it’s own can be seen as discriminatory. If it is used instead of the 1st amendment then it obviously is, but if it is used in conjunction with it to restrict what a legislature can do then it isn’t. And state constitutions can obviously restrict the state government.

        I guess my issue is if the legislature on its own did this. That is they voted no to this tax credit because they didn’t want to help religious schools that is still constitutional. No one could go to court and say them voting no was for unconstitutional reasons so the court should make it law. That is really all the Blaine Amendment does the was the Montana Supreme Court reads it, as a restriction on laws the state legislature can enact.

  9. Can someone please explain to me how to argue in favor of an entirely secular system of government, which is also pledged to avoid interfering with religion, or establishing religion? Because that is what I want to see, but based on arguments offered here it looks impossible.

    1. The answer is all about how you define “interfere.” The Free Exercise clause is largely read as a non discrimination provision. You probably want it read more as you can’t stop people from practicing but we don’t have to help you even if we help secular purposes. Some would say that is interfering with religion because it makes it harder to practice religion then similar secular things. So the argument you have to make is that Free Exercise clause is not a discrimination provision it is a leave us alone provision (though that may call into question Employment Division vs Smith which I assume you probably like).

    2. One way to do that would be to simply not have government in charge of education.

  10. The Blaine amendment motivation is irrelevant and I am at a loss to understand how a libertarian philosophy can support government resources being directed at religious schools.

    A fundamental principle of democracy and freedom is that no individual should be forced to support a religion. Yet that is what happens when government resources are directly or indirectly provided to religious sponsored schools that advocate for their religion. Thoreau settled this issue over 150 years ago.

    A libertarian should be at the forefront of the battle to allow citizens the freedom not to be compelled to promote not just a specific religion but any religion at all. Where are those small government, conservative libertarians when we need them.

    1. The Blaine amendment motivation is irrelevant and I am at a loss to understand how a libertarian philosophy can support government resources being directed at religious schools.

  11. “the Need for a Consistent Approach to Discrimination on the Basis of Religion”

    First, define religion.

  12. This may be water under the bridge but I’m not sure the bill of rights should have been “incorporated” against the states. Basically spells the end of federalism.

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More on Copyright Lawyer Richard Liebowitz

The latest district court order dealing with questions surrounding one of Mr. Liebowitz's cases.

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From Judge Jesse M. Furman in Usherson v. Bandshell Artist Mgmt. (for more on Richard Liebowitz, see these posts):

In the colloquy that followed the evidentiary hearing in this case on January 8, 2020, defense counsel advised the Court that he had reason to believe that Paragraph 9 of the Complaint — which alleges that the photograph at issue in this case (the "Photograph") "was registered with United States Copyright Office and was given Copyright Registration Number VAu 1-080-046" ("Registration 046") — was inaccurate. [Generally speaking, before a copyright lawsuit is filed, the plaintiff must register the copyrighted work. -EV] In response, counsel to Richard Liebowitz and the Liebowitz Law Firm, James Freeman, represented that Paragraph 9 of the Complaint "was based on Mr. Usherson's representation that the photograph in this case was under that copyright registration number"; that counsel had no "reason to doubt the veracity of [Mr. Usherson's] representations"; and that, before filing suit, counsel verified that Mr. Usherson was the claimant for Registration 046, but did not take additional steps to confirm that the Photograph was actually registered. The Court then ordered Plaintiff's counsel to submit a letter-brief "indicating, one, whether the photograph at issue in this case was, in fact, registered with the Copyright Office; and, two, if it was not, why sanctions would not be appropriate based on the allegation in paragraph 9 of the complaint."

Pursuant to the Court's Order, Mr. Liebowitz filed a letter-brief on January 17, 2020. In his letter, Mr. Liebowitz concedes that Paragraph 9 of the Complaint "is inaccurate" because the Photograph "was not registered as part of the 046 Registration." Mr. Liebowitz reports further that "the Photograph was registered in Plaintiff's name under registration number VAu 1-373-272" ("Registration 272"), with an "effective date of August 22, 2019" — more than one month after this lawsuit was filed. Mr. Liebowitz attributes the problem (although it is not clear if the problem to which he refers is the inaccuracy of Paragraph 9 or the failure to register the Photograph in the first instance) to "administrative mistake[] or "clerical error[]" — but he does not elaborate on the nature or source of the purported mistake or error. Ultimately, Mr. Liebowitz contends that the Court cannot impose sanctions "for designating an incorrect copyright registration number in the initial complaint" without "a specific showing of bad faith conduct on [the] part of Mr. Liebowitz, the attorney who signed the complaint, respecting the registration itself."

[Footnote: Mr. Liebowitz also accuses defense counsel of "violat[ing]" the Court's Order by raising the registration issue at the January 8, 2020 hearing, "which was narrowly limited to the question of whether Mr. Liebowitz obtained certain permissions from the Mediator." Not so. Defense counsel did not seek to introduce evidence with respect to the issue during the evidentiary hearing itself, which was — per the Court's earlier Order — "narrowly limited." Instead, as an officer of the Court, he brought it to the Court's attention in the colloquy that followed the evidentiary hearing. That was entirely appropriate.]

Mr. Liebowitz's unsworn letter raises more questions than it answers.

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  1. OMG….Liebowitz is back again?! For the 701st time? 🙂 I would not be surprised at all if one of the judges on the second circuit pulls out a bat and whacks this guy because he is such a major league pain in the ass. He must be legendary when the judges talk in chambers.

  2. IANAL. How much of this is normal, and ow much is due to judges deciding to nitpick the repeat offender?

    The dual registration bit is somewhat mysterious to me; it seems like it could be serious or just a true clerical slipup. Does this happen in other cases?

    If it does happen, I would guess the proper action would have been to amend the complaint, notify the other parties, etc, as soon as possible, and that the mistake here was to try to paper it over, to pretend it had not happened — like so much else, it’s the coverup that gets people’s dander up.

    If any other lawyer had been caught like this, would judges do anything more than tsk, tsk and warn the lawyer to get his office act together? How much of these actions (sworn letters, notarized letter) are because of Liebowitz’s reputation?

    1. The dual registration bit is somewhat mysterious to me; it seems like it could be serious or just a true clerical slipup. Does this happen in other cases?

      As best I can tell, the problem is that Liebowitz has decided to run a high volume, assembly line practice. It’s a business model some lawyers use, but it’s more well-suited to some types of practices than others. In particular, this type of practice only works well if you don’t have to litigate. A defendant who decides not to quickly settle, but instead to fight the claim, throws major sand into the gears of such a practice. In state court that may not be such a big deal, but in federal court, you can quickly run into trouble.

      You have to be scrupulously sure that you have best practices in place to make sure things are done correctly, and it doesn’t seem like Liebowitz does. So he keeps getting snagged on things like discovery. And once you get a reputation — and he’s got one big time — then everyone is going to scrutinize carefully. And, yes, then judges are much less likely to accept “Oops” as a defense.

      1. Thanks. I hadn’t thought about his assembly-line business model going off the rails when someone fights back. Here’s hoping this emboldens a few more of his targets and he gets disbarred.

  3. Some legal background might be helpful here.

    Under the Copyright Act, rights vest without registration. However, for works created in the U.S., 17 U.S.C. 411 requires that the work be registered with the Copyright Office before suit can be instituted.

    For many years, courts held that this was jurisdictional — meaning, the court lacked jurisdiction without a registration. But the Supreme Court in Reed Elsevier, Inc. v. Muchnick, 559 US 154 (2010) held otherwise. Federal courts’s subject matter jurisdiction over a copyright is not dependent on a registration, it is simply a statutory condition to file a claim.

    I think that means here that had Liebowitz simply alerted the Court and filed an Amended Complaint with the new registration, then all would have been well. Instead it appears he hid it, and then covered his tracks with lies. He is in this judge’s sites, and the end result will not be pretty.

  4. Compare Liebowitz’s treatment to that of UCONN student “John Doe”. An accusation from the “victim”, a quick kangaroo court judgement, and Doe is tossed right out of college.

    Liebowitz, on the other hand, gets to fuck with judges for years on end with his appalling lies and bad faith conduct. What does it take to get disbarred these days?

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Today in Supreme Court History

Today in Supreme Court History: January 25, 1819

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1/25/1819: Thomas Jefferson charters the University of Virginia. 176 years later, the Supreme Court would decide Rosenberger v. Rector and Visitors of the University of Virginia (1995).

The Rehnquist Court

 

Libel

"Watch Out for Maury Arcadier, He Has a Very Bad Temper" Is Opinion, Not Libel

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A correct conclusion, I believe, by Judge James H. Earp (Florida, Brevard County), in Arcadier v. Lunden; the plaintiff, a lawyer representing himself (Maurice Arcadier of Arcadier Biggie & Wood), seems to have had a pretty weak case:

THIS CAUSE came before the Court on Monday, December 16, 2019 on Defendants' Motion to Dismiss the Complaint. The Court having reviewed the Motion, having heard argument of counsel, and having otherwise fully considered the matter, finds as follows:

[1.] Plaintiffs filed an eight (8) count complaint alleging defamation and defamation per se against the Defendants, Kenneth Lunden, individually, and Cocoa Village Marina Boaters Association, Inc., d/b/a Cocoa Village Marina.

[2.] The alleged defamatory statement was posted on the internet in a Google review and stated in its entirety: "Watch out for Maury Arcadier, he has a very bad temper." In addition, the Plaintiffs alleged that the author of the statement gave Mr. Arcadier and his law firm a one (1) star rating.

[3.] The alleged defamatory statements, including the one (1) star rating, are not actionable as a matter of law because they are expressions of pure opinion protected by the First Amendment to the United States Constitution.

You can read the Complaint and the Motion to Dismiss, if you'd like. Reminds me of the Joe Morrissey lawsuit over someone calling Morrissey a "fool."

Judges

The BIA Is Behaving Badly (and Judge Easterbrook Is Not Amused)

In which the Board of Immigration Appeals decides it can ignore appellate court rulings and is nearly held in contempt.

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Much of legal twitter is abuzz about Judge Frank Easterbrook's brief yet blistering opinion in Baez-Sanchez v. Barrin which he expresses incredulity at the Board of Immigration Appeals' apparent willingness to disregard a decision of a reviewing appeals court.

The opinion should be read for the full effect, so here it is:

Jorge Baez-Sanchez, a citizen of Mexico, is removable as a criminal alien. His conviction for aggravated battery of a police officer renders him inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I). He applied to the Department of Homeland Security for a U visa, which would allow him to remain in the United States. The U visa is available to some admissible aliens who have been victims of crime in this country. Baez-Sanchez asked the immigration judge assigned to his case to grant him a waiver of inadmissibility, which would allow the Department of Homeland Security to rule favorably on his visa application. A statute, 8 U.S.C. § 1182(d)(3)(A)(ii), permits the Attorney General to waive an alien's inadmissibility. Exercising that authority, an immigration judge twice granted the request for waiver. After the initial grant, the Board of Immigration Appeals remanded with instructions to consider an additional issue. The immigration judge did so and reaffirmed her decision.

On appeal to the Board, the Department of Homeland Security contended that the immigration judge erred in finding that Baez-Sanchez had shown the extraordinary circumstances needed to justify a waiver and had abused her discretion in light of Baez-Sanchez's criminal history and other negative equities. The Board did not address either contention. Instead, relying on Matter of Khan, 26 I. & N. Dec. 797 (BIA 2016), the Board concluded that the power to waive inadmissibility belongs to the Attorney General alone and may not be exercised by immigration judges.

On petition for review, we held that 8 C.F.R. § 1003.10(a) permits immigration judges to exercise all of the Attorney General's powers, except those expressly reserved by some other regulation. Baez-Sanchez v. Sessions, 872 F.3d 854 (7th Cir. 2017). No other regulation withdraws from immigration judges the power under § 1182(d)(3)(A)(ii), which means that the BIA erred. See also L.D.G. v. Holder, 744 F.3d 1022 (7th Cir. 2014).

Because the Board had not addressed any other question, principles of administrative law meant that we could not do so either. See SEC v. Chenery Corp., 318 U.S. 80, 87–88 (1943). We remanded with instructions to consider two possibilities that the Attorney General had raised in defense of the Board's decision: first, that some statute, regulation, or reorganization plan transferred to the Secretary the Attorney General's power to waive inadmissibility; second, that the power to waive inadmissibility may be exercised only in favor of aliens who apply from outside the United States. 872 F.3d at 856–57. We added that the Board also (or perhaps instead) could "decide whether to exercise in favor of, or against, Baez-Sanchez whatever discretion the Attorney General possesses." Id. at 857.

What happened next beggars belief. The Board of Immigration Appeals wrote, on the basis of a footnote in a letter the Attorney General issued after our opinion, that our decision is incorrect. Instead of addressing the issues we specified, the Board repeated a theme of its prior decision that the Secretary has the sole power to issue U visas and therefore should have the sole power to decide whether to waive inadmissibility. The Board did not rely on any statute, regulation, or reorganization plan transferring the waiver power under § 1182(d)(3)(A)(ii) from the Attorney General to the Secretary. Nor did the Board discuss whether only aliens outside the United States may apply for relief under § 1182(d)(3)(A)(ii). Likewise the Board did not consider whether Baez-Sanchez is entitled to a favorable exercise of whatever discretion the Attorney General retains. In sum, the Board flatly refused to implement our decision. Baez-Sanchez has filed a second petition for review.

We have never before encountered defiance of a remand order, and we hope never to see it again. Members of the Board must count themselves lucky that Baez-Sanchez has not asked us to hold them in contempt, with all the consequences that possibility entails.

The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the latter. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the "judicial Power" under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995). We acted under a statutory grant of authority to review the Board's decisions. 8 U.S.C. § 1252(a)(1). Once we reached a conclusion, both the Constitution and the statute required the Board to implement it.

A judicial decision does not require the Executive Branch to abandon its views about what the law provides, for the doctrine of offensive non-mutual issue preclusion does not apply to the United States. United States v. Mendoza, 464 U.S. 154 (1984). The Attorney General, the Secretary, and the Board are free to maintain, in some other case, that our decision is mistaken—though it has been followed elsewhere, see Meridor v. Attorney General, 891 F.3d 1302, 1307 & n.8 (11th Cir. 2018). But they are not free to disregard our mandate in the very case making the decision. That much, at least, is well established, not only in Plaut but also in many other cases. See, e.g., United States v. Stauffer Chemical Co., 464 U.S. 165 (1984). The Solicitor General did not ask the Supreme Court to review our decision, and the Department of Justice is bound by it.

The Attorney General's brief in this court does not defend the Board's decision—but neither does it confess error. Instead it asks us to remand so that the Board may "address in an authoritative decision whether an immigration judge may adjudicate an application for a nonimmigrant waiver under 8 U.S.C. § 1182(d)(3)(A)(ii) in removal proceedings." The request is bizarre. We have already held that immigration judges do possess this power, if the Attorney General himself retains it. We directed the Board to consider whether the power has been transferred by statute, regulation, or reorganization plan to the Secretary of Homeland Security. The Board chose not to address that question, and we are hardly going to remand so that the Board can write another opinion about whether we erred in construing 8 C.F.R. § 1003.10(a). That's water under the bridge. The Attorney General contends that a new decision by the Board could be entitled to deference under Kisor v. Wilkie, 139 S. Ct. 2400 (2019), but we held that the regulation is unambiguous. An agency is entitled to reinterpret an ambiguous regulation, see National Cable & Telecommunications Association v. Brand X Internet Services, 545 U.S. 967 (2005), but cannot rewrite an unambiguous one through the guise of interpretation. Change requires rulemaking.

The only remaining question is what should happen next. After concluding that an administrative decision is flawed, a court of appeals normally must remand to the agency. See, e.g., Negusie v. Holder, 555 U.S. 511 (2009); Gonzales v. Thomas, 547 U.S. 183(2006); INS v. Orlando Ventura, 537 U.S. 12 (2002). Yet we have already remanded, only to be met by obduracy. The remand rule is designed to afford the agency an opportunity to have its say on an issue, a say that may reflect expertise and could be entitled to judicial deference. The Board had that opportunity and disdained it. Another remand would do little beside give the Board a free pass for its effrontery, while delaying the alien's entitlement to a final decision. That's not the goal of the remand rule. Baez-Sanchez has waited long enough.

We deem all of the legal questions settled. For the purpose of this proceeding, at least, the Attorney General retains his power to grant waivers of inadmissibility, and immigration judges may exercise that power on the Attorney General's behalf. An immigration judge has ruled in favor of Baez-Sanchez. If the Department of Justice were contending that the immigration judge had abused her discretion, then we would remand to the Board to address that subject. But the Attorney General's brief in this court does not ask for a remand on the propriety of granting a waiver to Baez-Sanchez, in particular. The brief the Department of Homeland Security submitted to the Board on remand similarly does not contend that the immigration judge erred, if immigration judges possess the waiver power. All of the issues in this proceeding therefore have been finally resolved, and there is nothing more for the Board to do.

The petition for review is granted, and the Board's decision is vacated. This leaves the immigration judge's decision in force. The Executive Branch must honor that decision, which grants Baez-Sanchez a waiver of inadmissibility so that he may seek a U visa from the Department of Homeland Security.

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  1. Good for the Board. The Reinhardt Principle in action.

    The immigration judge and the C/A was going to let him stay no matter what, open defiance didn’t cost anything.

    1. You wouldn’t be saying that if the Board ignored a judicial decision so that it could act in favor of an immigrant I assume?

      Perhaps you need some perspective about how not good the Board’s behavior was. Imagine if a court ordered officials to release a prisoner and the officials decided not to seek any other judicial relief and merely declined to release the prisoner. Would this be a good system to you? What good are courts if orders in individual cases are simply ignored?

      Also there is the small problem of the Board members happening to all be lawyers. It’s not only “not good” it’s also a breach of their professional ethics.

      1. “What good are courts if orders in individual cases are simply ignored? ”

        Federal courts have too much power, we would be better off if they were ignored more often.

        Nothing happened, the felon can stay until the inevitable next felony.

        1. Jesus. You are just not a good person, are you?

          1. Shame he isn’t Bob from Georgia so you can just write it off as clinging – – – –

            1. Are Georgians famous for nihilism and win-at-all costs situational ethics? Because that’s what Bob’s comments often amount to.

          2. No he isn’t.

            It’s worth remembering Frank Easterbrook isn’t some flaming liberal. He’s a very famous, very conservative judge who has been on the bench a long time. But he’s still a judge.

            And despite John Roberts’ “umpire” analogy being both somewhat problematic and something of a cliche, here I would think it applies. If the law requires a decision in favor of an immigrant, you can’t refuse to issue it because you don’t like the immigrant, any more than an umpire should call a pitch a strike which is outside the strike zone because he doesn’t like the batter.

        2. Why do scumbag authoritarians read Reason?

          1. I don’t know why this plays draws so many Lefties.

    2. The “Reinhardt Principle”? That one’s new to me. Explanation, please?

      But no, not good for the Board. If they sincerely thought that the immigration judge and appeals court were going to let him stay no matter what, the proper course of action would be an appeal to the next court up the chain. They apparently didn’t even attempt that.

      1. “Did you mean Reinhardt principal?? Here’s a list of school principals named Reinhardt.”

    3. Its too late to get rid of him. They probably already have his name on the ballot harvesting lists for each election and it’s a pain in the arse to do anything but add to those things. Progs need criminals to vote for them until death.

      And long after…

    4. I don;t get the problem when the statute gives the AG the power to overturn something and the AG declines to do so.

      If the AG didn’t have the option, then the statute wouldn’t have said he did.

  2. Aggravated Battery of a Police Officer. And Easterbrook wants to let this fine gentleman stay.

    I wonder if his next crime will be Aggravated Battery of a Federal Judge? It’s only fair to have some skin in the game…

    1. What he wants is the Board to follow the law. You expect the alien to follow the law, why not the Board? Are they too good for that?

      1. “What he wants is the Board to follow the law. You expect the alien to follow the law, why not the Board? Are they too good for that?”

        “A statute, 8 U.S.C. § 1182(d)(3)(A)(ii), permits the Attorney General to waive an alien’s inadmissibility.”

        The law PERMITS. It does not REQUIRE. I fail to see the issue.

    2. Maybe, just maybe, you should not assume that all police are Fine Gentlemen, and that maybe, Just Maybe, the so-called battery was no such thing. It has happened.

      1. An interesting argument, one that the gentleman’s lawyer failed to present. We can assume that he indeed committed aggravated assault.

        1. No, we can only assume the courts decided that. I do not have enough much faith in our judicial system to assume that is a certainty, and the fact that this court at least seems to think it not an invalidating factor makes me more suspicious.

          1. By “courts” you mean “jury”?

    3. “Easterbrook wants to let this fine gentleman stay.”

      His crime pales to thereal crime of not listening to a god like federal judge.

      1. Lesseeeee …. battery on a cop is Terrible Bad because the cop is an agent of The Justice System.

        Ignoring a judge is …. ok? …. because police outrank judges? or what?

        1. Well, this is certainly a perspective.

    4. Neither Easterbrook nor the immigration judge said anything about letting him stay. The immigration judge cancelled inadmissibility only, not removability. He can only stay if he is granted the U Visa which is not in the judges jurisdiction that belongs to DHS. Easterbrook only said that the BIAs reason for reversing, “that the judge didn’t have that power on the AG did”, was incorrect as a matter of law but remanded to determine other questions including whether she abused her power or that the power was transferred to the Sec of DHS. The BIA ignored that and DHS and AG didn’t even argue that on the remand. That is why in this opinion he considers all the legal questions settled. Never once said that he should stay because that was not the question before the immigration judge or the circuit court.

    5. You don’t much care for due process, do ya?

      1. As a legal immigrant myself, I have little tolerance for those who abuse this country’s hospitality.

        The fine gentleman has had plenty of due process already.

        1. Yah, so you often eagerly tell everyone. It doesn’t provide cover for you like you think it does though.

          The fine gentleman has had plenty of due process already. is just straight up fascist though.
          You don’t get to decide when to stop using the procedures laid down. Unless you are like stalk. Or something.

          1. If you ever conclude that the amount of process that is due has been exhausted, thats “straight up fascist.”

            Please consider migrating your posting to Twitter.

          2. Fascist, another term sarcastro misuses.

      2. I’m just confused a bit by the reporting.
        Somehow this guy is simultaneously an inadmissible felon and a candidate for a visa as a crime victim.

        1. The inadmissibility can be cancelled. That is what the suit was about. He asked that it be cancelled so that he could apply for the U Visa. If it wasn’t cancelled he would not be eligible for the visa.

          1. But the law doesn’t require the AG to go along. Again, he MAY but he does not HAVE TO.

            The AG, going by the law, can tell the Court to go fuck off.

            1. Maybe you should read the case. The regulations allow the IJ to exercise the power of the AG. The IJ did so and waived inadmissibility. The case was whether the IJ had that power or if only the AG does. The court said it did and the BIA then ignored that. The court is in no way requiring the AG or IJ to waive anything.

    6. I see no evidence that Easterbrook wants this guy to stay. I don’t even see strong evidence that the original administrative law judge wants him to stay. The original judge just wants the guy to have his chance to make his case to the Dept of Homeland Security. Remember that DHS is who actually gets to decide whether he can stay or not. And Easterbrook just wants the BIA to follow the process as it’s written, not arbitrarily make up their own rules.

      You talk about having some skin in the game. Maybe Easterbrook is thinking that the BIA’s next crime and wonding if they will continue bending the rules until they can “deport” anyone who disagrees with them.

      1. Can we please have an edit button? That should have been:
        “… thinking about the BIA’s next crime and wondering …”

  3. I wonder if he battered the cop’s knuckles with his head, or if he battered the cop’s foot with his testicles.

    1. I know nothing about the underlying facts of the case, but that comment made me LOL.

  4. So the Attorney General is actually any Judge?
    So voting for a party to get that party in power through the ballot box, and then having that partry’s executive appoint an AG from that party, just means if a judge from another political persuasion gets the case, your vote is vetoed?
    The things you can learn on the web –

    1. That’s based on a regulation. A regulation DOJ is free to change with notice and comment. No party wants to do that because they don’t want the political fall out for their decisions.

      1. The previous submission by the DoJ asked the Court to remand so that it could be determined if the immigration judge did, in fact, have the authority to waive the criminal-conviction inadmissibility bar due to some law or regulation.

        Instead, this Court said “We’re Article III judges! You WILL obey!” They straight up declared that since this Court had already decided, there was no allowance for an actual presentation of evidence or argument.

        1. The court determined the IJ has the power if the AG does and remanded for the BIA to determine if the AG has the power or was transferred to the Sec of DHS. The BIA then AGAIN just repeated its decision from before that the court already reversed. The DOJ when it went back to the court asked for it to be remanded again to the BIA to decide the question the court had already remanded to the BIA that it decided not to answer regarding transfer of the power to DHS. The court said no you don’t get two remands for the same issue.

          Yet we have already remanded, only to be met by obduracy. The remand rule is designed to afford the agency an opportunity to have its say on an issue, a say that may reflect expertise and could be entitled to judicial deference. The Board had that opportunity and disdained it. Another remand would do little beside give the Board a free pass for its effrontery, while delaying the alien’s entitlement to a final decision. That’s not the goal of the remand rule.

  5. § 1182(d)(3)(A)(ii)

    Too many parentheses; maybe laws should be simpler to read and interpret. Like “You can’t come into this country illegally. If you do , we will send you back.”

  6. Or for a better summary.

    1) AG delegates certain powers to immigration judges.
    2) Judge uses one of those powers
    3) Judge’s review board says “you don’t actually have that power”
    4) Circuit court “Oh yes, that judge did have that power delegated to him”
    5) Review board goes its boss, the AG, and asks “did you delegate this?” AG goes “Nah, not really” in an offhand conversation.
    6) Review board goes….umm, we’re going with our Boss on what he actually delegated, not on what the circuit court thinks he delegated.
    7) Circuit court. “HOW DARE YOU!!!”

    1. 8) It is emphatically the province of the judiciary to say what the law is.

      1. Normally, I’d agree with you. But…
        1. The review board is a group of lawyers/judges extremely well versed in immigration law. It is their specialty, whereas the 5th circuit is more general.

        2. There’s a second decision from the 3rd Circuit that says immigration judges don’t have the authority to give U Visa waivers. (Sunday v. Attorney General US, 15-1232, 3rd circuit)

        3. There is a 3rd decision from the 9th circuit (Man v Barr, 2019) that ALSO supports BIA’s interpretation that Immigration Judges can’t issue U Visa waviers

        4. The conclusion of the BIA basically goes “It looks like you gave us wiggle room in your decision, and there are two other circuit court decisions that go the other way. So, we’re going to go with a unified policy nation wide”.

        1. The judiciary has a chain of seniority. You don’t ignore it because the trial court are experts.

          Especially since the issue here isn’t immigration law, it’s administrative law. Which comes up a decent amount in appellate practice I hear.

          Your giving excuses for ignoring the law. Don’t do that.

        2. 1. That is why BIA opinions normally get deference. But that deference only applies if the statutes and regulations are ambiguous. The 7th Circuit in this case said they aren’t (admittedly the 9th did in the Mann case). But it is also completely non controversial that different circuits can come to different conclusions and the case is determined based on that circuits precedent, not a sister circuits. And specifically a decision in a specific case can not be ignored, that is the law of the case.

          2. Different arguments though, and in important ways. In Sunday the 3rd Circuit didn’t say that the IJ can’t exercise the powers of the AG. It said that this power in regards to U Visas (that is waiver of inadmissibility) has been transferred to DHS and out of the AGs power (and therefore the IJ). That is a different argument then the one originally made here and one that the first 7th Circuit decision remanded back to BIA to determine. So the 7th Circuit didn’t call into question the 3rd Circuit decision. The BIA could have ruled that way and it would be perfectly compliant with the original decision.

          3. As stated above the difference was the 9th Circuit saying the statutes were ambiguous and therefore deference rules. The 7th Circuit disagreed on ambiguity. That is the law of this case. They were free to appeal to SCOTUS if they wanted. They didn’t.

          4. I don’t see where the wiggle room is, and neither did the 7th Circuit. They remanded several questions that the BIA could have relied on, but not the one that BIA decided to ignore and reaffirm the previous decision (that the IJ has the powers that are vested in the AG)

          1. Let me say first, I deeply appreciate the full critique. With that.

            1. “But that deference only applies if the statutes and regulations are ambiguous.”

            In fact, the 7th circuit DID say they were ambiguous. In their earlier decision (LDG v Holder) on page 17, the 7th circuit literally says “This is the best we can make of an ambiguous statutory scheme.” They ruled on it anyway. But they ALSO said it was ambiguous.

            2. I don’t disagree. In fact, I believe that neither the AG nor the IJs should be able to issue waivers for inadmissibility under U-visa conditions. But try getting a department to give up powers… Anyway, it’s the same end result. IJ’s can’t issue it.

            3. There is now a disagreement between the circuits. I would expect an appeal now.

            4. See point 1.

            At the end of the day, given the 7th Circuit’s new decision, I would now expect an appeal to the SCOTUS, if for no other reason than to unify nationwide the different opinions. I would also likely expect the SCOTUS to rule against the 7th here. Whether it falls to the 9th or 3rd’s ruling is unclear. I’d probably expect the 3rd’s ruling, but it could go either way.

            1. For 1 and 3 I should have been more clear. The 7th Circuit said the regulation implementing the statutes was unambiguous…”but we held that the regulation is unambiguous.” These are in regard solely to the regulations on whether the IJ has the authority to exercise the powers granted to the AG. The case you refer to again is about the ambiguity in possible transfer of the waiver decision is U Visa cases from the AG to DHS not the question of whether the IJ can exercise powers that are granted to the AG.

              The importance is not conflating the AG to IJ power and the possible transfer of this to the DHS. Because the former has wider application.

              The BIA said nothing of the latter question and that is where the full statutory scheme is ambiguous. They only answered the former where they have regulated in response to the statutes and that was unambiguous. Then on remand they could have said there is ambiguity as to whether the power has been transferred to DHS and we hold it is that would have 1) not ignored the original decision and 2) probably have been upheld at least under deference.

              Yes it may have gotten to the same spot, but the reasoning is not the same and is important because the BIAs decision is one of greater applicability (AG to IJ power is of more general applicability than just the question of waiver in U Visa cases) than would the other reason of ambiguity when it comes to U Visa’s statutory and regulatory scheme. So it is important that the 7th Circuit held firm to no allow the stated decision to stand if it felt is was wrong.

  7. I prefer the old term, “collateral estoppel”.

  8. Given Judge Easterbrook’s open defiance of SCOTUS precedent in other areas of law (see Friedman v. City of Highland Park), it seems to me that perhaps Judge Easterbrook should practice what he preaches.

    1. It was such open defiance that the Court didn’t even grant cert.

      1. To the clingers, that constitutes evidence that the Deep State has something on Chief Justice Roberts and perhaps one or two of the other right-wingers on that bench.

  9. The conservatives in this thread provide a stark divider between those willing to abide by the rule of law and those who care only about getting their way.

    Those into rule of law, note how you are outnumbered. And as this is a legal blog the sample bias is probably favoring you…

    1. The ‘rule of law’ in this matter is that illegals shouldn’t be here in the first place and refugees should actually be in need and state and local authorities shouldn’t actively be using taxpayer money to help murderers flee federal authorities. Hows that working out for us?

      1. If you want a thing due to rule of law concerns you should also care about getting it via rule of law methods.

        You do not. I therefore conclude your reasons have to do with something other than rule of law, and you go on about rule of law to hide it.

        1. Theres moral law and then theres legal framework. The latter has been treated as merely a tool to an end by everybody, most of all the Left. I’m merely pointing out your hypocrisy as you and others suddenly peacock as some sort of paladin for nonpartisan order and that this is just another case of both sides assuming whatever position is convenient for them.

          Or are you claiming you’d be out in full force with deportation picket signs if the legal framework went in that direction or even that you’re right at this moment working feverishly to hold local and state governments accountable for openly flouting federal agents and laws in favor of vicious criminals?

          1. Theres moral law and then theres legal framework

            In other words, there’s your personal BS and then there’s the actual law. Shove off with that – you’re no MLK.

            No matter how much you hate the left, if you’re willing to burn down the rules to get at them, you’re a pretty awful American.

            1. Says the guy who supports illegals and their Democrat protectors who routinely and openly burn down the rules.

              You people are such disgusting hypocrites.

              1. No one in this case disputed what the rules are. You just don’t care about them.

                1. There actually was a dispute, why it was raised to the next court. Dishonest oozes from you.

                  Please, tell us again your views on judges stating Trump cant undo the ACA executive order again.

            2. I’m not here to take a position on this specific case I’m here to show the hypocrisy. Have you shown any more concern for the ‘rule of law’ in your actions? Would you be here showing your full support for deportation if things were reversed? Answer honestly.

              1. He would not. He has been dishonest for a decade. Failing as a physicist broke his logic.

      2. Reading the decision in this post where does it say he is an illegal immigrant? Being a citizen of Mexico doesn’t mean he came here illegally.

      3. It’s always fascinating to see “rule of law” and “law and order” folks focus on two narrow subsets of laws: immigration and criminal offenses. And not all criminal offenses, mind you, just certain ones. When doing so it’s as if they are completely unaware that the law as a whole is broader than that. Of course they are aware, they’re just engaged in the principle that there should be people they like whom the law protects but does not bind, and others they don’t like who the law binds but does not protect.

    2. I have never once seen you call out activist judges on your side sarcastro. Yet you feel free to call out others. Dishonesty is your bread and butter. You literally have judges flaunting various gun precedence. District courts throwing up national injunctions for no actual legal construction. Yet you have ire here. You’re just plain dishonest.

    3. But openly ignoring immigration law is okay, right?

  10. Yo….that judge sounds pissed off.

    One thing I learned early in life: Do not, do not, do not screw around with a judge. Ever.

  11. In Wisconsin the Election Commission is ignoring the plain letter of the law and a court order in refusing to deactivate 200,000 voters who have moved out of State, declaring that while the law states 30 days, they decided they need two years to deactivate.

    The Executive is in open defiance of the Legislative and Judicial branches.

    We are witnessing the beginning of the end of this country. The Lefr has become utterly lawless and are a danger, an extreme danger to our way of life.

    1. I assume either unreason or Volokh will eventually get into this.

      I make bad assumptions a lot, though….

  12. The left is completely lawless in its zeal to replace Americans with illiterate third worlders who will vote for them.

    Birthright citizenship is exactly why conservatives want control over our border. But if this criminal savage is ultimately allowed to stay, and he produces a child on U.S. soil, the same leftists will be shrieking “He’s a U.S. citizen, just as American as you and me! How dare you not want to treat him as one of your countrymen!”

  13. So what was the BIA thinking? As the decision says, they’re all lawyers. Are they incompetent lawyers who really don’t understand how the system works? Did they knowingly defy a court order because they thought nobody would notice? What’s going on here?

    1. Actually feel a little bit sorry for them. The person who appointed them to serve on the BIA orders them to defy a federal court. It’s a bad position to be in.

      Of course they could have satisfied both anti-immigrant inclinations and the circuit court by just ruling against the guy on his case specifically. Don’t know what Barr is trying to achieve by ordering defiance on a more general legal issue.

  14. We added that the Board also (or perhaps in- stead) could “decide whether to exercise in favor of, or against, Baez-Sanchez whatever discretion the A]orney General possesses.”

    The court explicitly gave the Board authority to decide the issue, then got upset when the Board decided the issue in a manner the court didn’t like.

    I fail to see the problem here.

    1. They gave the Board the authority to rule on the issue based on the discretion of the AG. It did not say they could assert that as a matter of law there was no jurisdiction to exercise any discretion because that is the exact question the court ruled on and reversed.

Please to post comments

Short Circuit: A Roundup of Recent Federal Court Decisions

Fireburn, puppycide, and the DOJ beggars belief.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

This week, the Supreme Court heard oral argument in Espinoza v. Montana Dep't of Revenue, an IJ school choice case. Click here for an account of the hearing from IJ's Nick Sibilla. Or click here to ponder along with Anthony Sanders, the director of IJ's Center for Judicial Engagement, what it means to have the gov't on both sides of the case. Or click here for an IJ podcast that notes, among other things, that the U.S. stands nearly alone among the world's democracies in providing so few educational options—pedagogical, secular, religious, private, public—to families.

  • Zeta drug cartel assassins attack two American agents in Mexico, killing one and injuring the other. After extradition to the U.S., they are convicted of, among other things, killing an officer or employee of the United States and using a firearm while committing a crime of violence. Wait a minute! Do these laws even apply outside the U.S.? D.C. Circuit (creating a circuit split): We generally presume laws don't apply extraterritorially unless there's evidence Congress intended that. There is such evidence for the law about using a firearm but not for the other law. Remanded for resentencing.
  • Operating a website with the intent to promote or encourage the prostitution of another person is a federal felony punishable by 10 years in prison (25 years in some circumstances). A coalition of sex-worker advocacy groups and others worried about running afoul of the law sue, alleging it violates the First and Fifth Amendments. D.C. Circuit: And at least two of them—the founder of a website that allows sex workers to share information about products and services they use and a massage therapist who can no longer advertise on Craigslist—have standing. Concurrence: But the law doesn't reach the sort of pure issue advocacy the other plaintiffs engage in.
  • Federal law bans people from obtaining firearms if they have been convicted of a "serious" crime that carries a potential punishment of over a year in prison. Does that violate the Second Amendment rights of a man who was convicted of DUI in 2005? Third Circuit: The conviction carried a maximum sentence of five years, so no gun for him. Dissent: We all agree that DUIs are serious, but his exact crime would lead to a federal prohibition on gun possession in only 8 of 51 jurisdictions.
  • In 1878, workers in then-Danish colony of St. Croix, Virgin Islands set fire to 50 sugarcane plantations and burn much of the town of Frederiksted to the ground. (Among their grievances: a law that allowed them to change jobs only once a year—on one particular day of the year.) Starting in 2009, a St. Croix legislator obtains $90k in public funds to research the revolt—locally known as Fireburn—for a movie. Yikes! The legislator (who is also the author of a three-volume etiquette guide for young men) spends most of the money on other stuff. Third Circuit: Conviction affirmed.
  • While visiting an inmate in a Virginia prison (who was suspected of running drugs in the prison), woman is observed adjusting her clothes in ways officers deem suspicious. They interrupt the visit to tell her that she must consent to a strip search if she ever wants to visit again. The crying woman is subjected to a full strip search, during which she is required to undress, remove her tampon, squat and cough, and expose her anus. (No contraband is discovered.) Was the search supported by reasonable suspicion? Fourth Circuit (over a dissent): Hey, she admits she touched her clothes; what else do they need to form a suspicion?
  • Allegation: Augusta County, Va. police officer arrives outside woman's home, encounters woman's dog (a German Shepherd named Jax), and shoots the dog in the head. Woman sues. Officer: I reasonably felt threatened by the 150-pound Jax, who was advancing toward me and barking. Woman: Jax was tied to a zip lead, and it was obvious he couldn't have reached the officer. District court: Qualified immunity.  Fourth Circuit: The case must proceed. A reasonable officer would have known that shooting the restrained Jax was unreasonable.
  • "At worst, the officers heard reports that a man fitting Jones's rough description was eating out of a dumpster." So no qualified immunity, holds the Sixth Circuit, for the Elyria, Ohio officers who allegedly frisked, tackled, and tased a compliant Jones.
  • Former U.S. Attorney General Eric Holder receives a voicemail saying, "former U.S. Attorney General Eric Holder, I am going to murder you." Sixth Circuit: Which is indeed a true threat. Conviction upheld.
  • Under Indiana law, if a woman in an opposite-sex marriage gives birth, her husband is presumed to be the child's biological father and is listed on the birth certificate. If a woman in a same-sex marriage gives birth, only the birth mother will be listed on the birth certificate, even if the wife donated the egg. The only way to have both mothers listed on the birth certificate is to go through the adoption process. An equal protection violation? Clearly so, says the Seventh Circuit, though the district court's injunction went a bit too far.
  • An Illinois inmate with a year of miserable rectal pain will get a trial, holds the Seventh Circuit. His evidence—that a prison doctor insisted on treating anal warts rather than the fissure causing the pain—gets him past summary judgment.
  • Seventh Circuit: In which Frank Easterbrook is having none of the DOJ's bull@#$%.
  • Allegation: While jogging through a St. Louis park, man stops to watch police officer conducting traffic stops. Concerned that a "suspicious person" is following her, the officer radios for assistance. When the jogger refuses to disclose his Social Security number to one of the dispatched officers, the officer frisks, cuffs, and detains him for 20 minutes before a supervisor orders the jogger released. Eighth Circuit (over a dissent): Any reasonable officer would know that you can't detain someone just for quietly watching police at work. No qualified immunity; remanded to sort out factual disputes.
  • After years in prison for murder, four Fairbanks, Alaska men enter into a settlement with the state under which their convictions are vacated. (For the backstory, take a look at this informative article about "the Fairbanks Four.") Upon their release, they sue the city and four police officers for all manner of constitutional violations associated with their convictions. District court: No dice; your lawsuit would call into question the original convictions, which is not permitted. Ninth Circuit (over a dissent): Yes dice; the original convictions were vacated, so the case may proceed.
  • Venerable legal news service sues Ventura County, Calif. court over its policy of prohibiting media access to newly filed complaints until after those complaints have been processed, which can take several days. After years of litigation, the court adopts a new policy, under which complaints received before 3:00 p.m. are immediately scanned and made publicly available, while complaints received after 3:00 p.m. are processed the following day. Unsatisfied, the news service challenges the new procedure. Ninth Circuit: The old procedure violated the First Amendment right of access, but the new one is fine.
  • Environmental activists: The gov't has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change. That violates the right to a "climate system capable of sustaining human life," per the Due Process Clause of the Fifth Amendment. We demand a court order requiring the gov't to develop a plan to "phase out fossil fuel emissions and draw down excess atmospheric CO2." Ninth Circuit: We're scared, too, but that isn't something a federal court can do. Dissent: If courts can oversee desegregation orders, they can oversee this. Otherwise, "[w]hen the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?"
  • Property owners decline $56k offer for easement allowing pipeline to bisect their 40-acre Lake County, Fla. property. The pipeline company employs eminent domain, and the pipeline goes in anyway. Yikes! A jury awards the property owners over $300k in just compensation. New trial? Eleventh Circuit: Nope. Pay up.

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  1. I have no opinion regarding the merits of that 4th Circuit case re the search of the prison visitor, but, wow, the description of the facts is somewhat less than accurate:
    “In this case, the record demonstrates beyond genuine dispute that Sgt. Lokey and Unit Manager Brown made the decision to seek Calloway’s consent to a strip search based on a sequence of events that, viewed together, culminated in a reasonable suspicion that Calloway was attempting to pass contraband to Talbert during her July 17 visit. First, Lokey knew that, earlier in the year, Talbert had enlisted his mother to help in a conspiracy to smuggle tobacco into a different Virginia prison. Then, sometime after Talbert’s transfer to Augusta, Lokey started to hear from informants that he should keep an eye on “Travis.” And two days prior to Calloway’s visit, Lokey received a more concrete tip from an inmate that “Talbert was moving,” a term that Lokey knew to be prison slang for drug smuggling. All of this information suggested that Talbert might attempt to have an outside visitor sneak contraband into Augusta, as he had attempted to do at Bland. Thus, it was reasonable for Lokey to direct Officer Nelson to keep a particularly close watch on Talbert and any visitor he received that weekend. Then, in the context of this heightened scrutiny, Lokey received a report from Nelson during the course of Calloway’s visit with Talbert that he (Nelson) had observed Calloway adjusting her waistband in a suspicious manner and, indeed, that it looked to him like she had just unbuttoned her pants while in the visitation room.”

    1. I wondered a bit about what led them to their conclusion, but then I also read that they had found nothing, which seems to me they either were flat wrong and worsened the search in their desperation, or she had already transferred the contraband and they should have been searching the inmate. I see no mention of what they did to the inmate. if they did nothing, then I think the decision proper; and if they did search the inmate and found nothing, then it’s just more confirmation that their search was ill-advised. I suspect that if they had searched the inmate and found contraband, we’d have heard about it and the woman would have been charged and convicted.

      1. You can’t use whether contraband was found or not to decide if the search had suspicion. Otherwise you can justify every search that found drugs as “Well, obviously their suspicion was reasonable, because they found it!” You look at what they knew before they did the search, not require them to predict the future.

        1. I’m saying the reverse: they found nothing, on either person, so their suspicion was unfounded.

        2. You can’t use whether contraband was found or not to decide if the search had suspicion.

          That’s true — but you also can’t justify a search with a vague claim that something “looked suspicious,” a completely meaningless and unfalsifiable statement.

          The fact that no contraband was found certainly calls into question the guy’s ability to discern between suspicious and non-suspicious conduct.

      2. ” I see no mention of what they did to the inmate.”

        The inmate has no right not be be searched, so searching him doesn’t give rise to a lawsuit. That said, had they found something on him, presumably she would be in criminal court as the defendant rather than in civil court as the plaintiff.

      3. “, or she had already transferred the contraband and they should have been searching the inmate. I see no mention of what they did to the inmate.”

        I haven’t spent a lot of time in prison, but my sense is that strip searching inmates after contact visits is common, if not the norm.

    2. “Then, in the context of this heightened scrutiny, Lokey received a report from Nelson during the course of Calloway’s visit with Talbert that he (Nelson) had observed Calloway adjusting her waistband in a suspicious manner and, indeed, that it looked to him like she had just unbuttoned her pants while in the visitation room.”

      What’s the difference between adjusting one’s pants in a suspicious manner and a non-suspicious manner?

      Does adding “in a suspicious manner” to an innocuous activity create suspicion?

      And had she, in fact, unbuttoned her pants?

      All in all, the summary seems fair.

    3. At least with respect to the activity on the video feed, there isn’t articulable suspicion beyond the fact that she was adjusting her clothes.

      Note the weasel wording: “…in a manner that
      “looked [to Nelson] like she [had] reached inside the front of her pants.” and “Based on that observation from the live video feed, Nelson believed that Calloway had just unbuttoned her pants…”

      He couldn’t testify, “I saw her reach into the front of her pants.” or “I saw her unbutton her pants.”

  2. For those of you keeping score at home, one of the Judges in the Fourth Circuit strip search case, Judge King, was also a dissenter in the Trey Sims case. He would have held that it doesn’t violate QI for an officer to obtain and execute a search warrant to photograph a minor’s erect penis. So it’s hardly surprising that he’s less than sympathetic to Fourth Amendment claims involving the privacy of the human body.

    1. “He would have held that it doesn’t violate QI for an officer to obtain and execute a search warrant to photograph a minor’s erect penis.”

      Not just to photograph him, but to sexually assault the minor for the purpose of obtaining the photo.

        1. My God…how revolting!!! QI has to go! = Not just to photograph him, but to sexually assault the minor for the purpose of obtaining the photo.

        2. Oh, it’s worse than that. The detective involved later committed suicide after it came to light that he was a serial molester of adolescent boys.

          1. The prosecutor who helped secure the warrant is still a prosecutor. The magistrate who issued the warrant wasn’t even named and shamed in the Fourth Circuit opinion.

  3. “We all agree that DUIs are serious, but his exact crime would lead to a federal prohibition on gun possession in only 8 of 51 jurisdictions.”

    Well, then, this poor sod picked the wrong jurisdiction to drive drunkenly in, then, didn’t he?

    1. That isn’t the point. The burden should be on the state to prove why a particular conviction should void a person’s Constitutional rights forever. They never do, and the courts stacked with leftists are happy to oblige.

  4. Some background statements on the dog-shooting from the Commonwealth Attorney’s investigation.

    1. And those self-serving statements in the police department’s press release deserve precisely the weight that they were given – none whatsoever at the motion to dismiss stage – and not very much once this finally gets to the actual trial.

      1. But the shooter said he was justified. What more do you need?

  5. After extradition to the U.S., they are convicted of, among other things, killing an officer or employee of the United States and using a firearm while committing a crime of violence. Wait a minute! Do these laws even apply outside the U.S.? D.C. Circuit (creating a circuit split): We generally presume laws don’t apply extraterritorially unless there’s evidence Congress intended that. There is such evidence for the law about using a firearm but not for the other law. Remanded for resentencing.

    So killing a federal employee outside the US isn’t a federal crime, but using a gun in a crime of violence outside the US is?

    I guess every murderer and bank robber around the world is subject to US law regardless of the nationality of the victim?

    1. Yeah, that sounded kind of backwards to me too…

    2. No. 18 U.S.C. § 924(c) criminalizes using a firearm during a federal crime of violence (or a federal drug trafficking crime).

  6. Former U.S. Attorney General Eric Holder receives a voicemail saying, “former U.S. Attorney General Eric Holder, I am going to murder you.” Sixth Circuit: Which is indeed a true threat. Conviction upheld.

    “You don’t really mean you’re going to kill him, do you?” — Henry Fonda, to a raging man out of control and moving to attack a guy imminently and had to be restrained, 12 Angry Men

  7. Federal law bans people from obtaining firearms if they have been convicted of a “serious” crime that carries a potential punishment of over a year in prison. Does that violate the Second Amendment rights of a man who was convicted of DUI in 2005? Third Circuit: The conviction carried a maximum sentence of five years, so no gun for him. Dissent: We all agree that DUIs are serious, but his exact crime would lead to a federal prohibition on gun possession in only 8 of 51 jurisdictions.

    I think I am on the side of the NRA on this one. Drunk driving is terrible, but I would think taking the Second Amendment seriously would mean that if you want to strip someone of their gun rights, the underlying offense should be something that evinces that it would be dangerous to allow the person to have a gun.

    DUI may sometimes be a felony, but it doesn’t fall within that category. I don’t think that a DUI conviction establishes that the person is the sort of violent hothead that justifies an abridgment of what is a constitutional right.

    1. For the most part, I agree with you. On the other hand, chronic drunks with guns is a really bad idea.

      1. I agree, but again, stipulating that this is an important constitutional right, it would be much better to require some sort of showing of chronic, irresponsible drunkenness rather than simply a DUI conviction, which could be an isolated incident.

  8. ” If courts can oversee desegregation orders, they can oversee this. Otherwise, “[w]hen the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?””

    They may, but I doubt they will be saying that about THE COURT SYSTEM.

    1. The courts have no authority to order the impossible. There are no viable options to do what the plaintiffs want without building hundreds if not thousands of new nuclear power plants along with a massive upgrade to existing electric power grids.

  9. I love the 3rd Circuit case involving the US Virgin Islands. After the jury reached a verdict, the court found that juror no. 8 had a limited ability to comprehend English. I have to wonder how that juror got through voir dire. Oh well, Judge Gomez handled that case correctly.

Please to post comments

FAQ about my New York Times Op-Ed

Answering some of the most common questions

|

Yesterday, the New York Times published my Op-Ed about the impeachment trial. I received a lot of feedback. This post will answer some of the most commonly-asked questions I received. I apologize that I can't respond to all emails, comments, and tweets. I still haven't checked my Twitter mentions. Indeed, I am using this opportunity as an excuse to wind down my Twitter usage. The site truly is a waste of time, and seldom yields any productive discourse. I removed the app from the home screen of my phone. Let's see how long this detente lasts.

1. Why didn't you write about X?

The Times asked me to write 900 words. The final version is about 1,000 words. Space is an important constraint on all op-eds. I have a very limited frame to convey an intricate positions. I spent considerable time laboring over nearly every word. I had wanted to develop some issues further, but the Times cut them out. The editors also asked me to talk about a few other issues that I would have preferred to exclude. Writing an Op-Ed requires making cuts, additions, and compromises. Given unlimited space, I could have written a book about the issues. I probably will one day–I am rarely criticized for not writing enough.

2. You didn't write about X so you must be disingenuous!

This criticism is one of the most common, and disheartening responses I received. There are many, many reasons why an Op-Ed includes some arguments, and not others. Question #1 above addresses some of the more practical rationales. Ultimately, the criticism of "Why did you write about X" boils down to "Why didn't you write the Op-Ed I would have written." There is a really simple answer: the New York Times invited me, and not you, to write the Op-Ed.

I wanted to convey very specific positions in a very limited space. It is not conceivable to simply "mention" some other argument in passing. That drive-by analysis will leave the reader uncertain, and would make my analysis incomplete. Any argument I offer has to be fully developed, or not offered at all. (The difficulties of writing a 900-word op-ed about something as complicated as impeachment should be manifest). There are lots of other issues I would have liked to discuss. But I did not have time to address the second article of impeachment. Or the Impoundment Control Act. Or the GAO decision. I decided to fully explore one aspect of the House's case–the relationship between the "abuse of power" article and "personal political benefit."

3. Only a partisan hack could write this op-ed. 

I view the phrase "partisan hack" as an academic version of "deplorable"–a person could only hold a belief because he is blinded by partisan rage. I encourage anyone reading this post to remove the phrase "partisan hack" from their discourse. Moreover, I chuckle when people use this label for me. The Op-Ed criticized Trump and his lawyers, but said his conduct does not rise to the level of impeachment:

Mr. Trump's lawyers respond that the call was "perfectly normal." Yes, that phrase actually appears in the brief. Regrettably, parts of the brief are written in a far-too-political tone. . . .

As a policy matter, I disagree with Mr. Trump's decision to ask for an investigation of the Bidens. Even if warranted, it should have been avoided at all reasonable costs. The Republic would have been fine if we never learned more about Burisma.

The Times was attracted to my position precisely because I have been critical of Trump's actions, but think the articles do not warrant removal.

4. Trump wasn't interested in Ukraine actually investigating Ukraine; he only wanted an announcement of the investigation.

My co-blogger Jon Adler raised this question, which I take to be a very serious point. It is one I have given considerable thought, and have discussed at some length with colleagues. I offered a tentative response in an interview for Law and Crime:

President Trump may have reasonably believed that merely asking for an announcement of an investigation would be sufficient. That is, he would not need to follow through and supervise how the Ukrainians manage their affairs. The announcement would line up all the principals in place, and the foreign government could conduct the investigation as they see fit. Or he may have changed his mind after the phone call about what was actually needed. Priorities do shift.

The more difficult question is what is the appropriate burden of proof for an impeachment conviction. It is not Trump's burden to show that he wanted an investigation, and not merely an announcement of an investigation. I think it is the House's burden to show that Trump did not want an actual investigation, but only the announcement. I think the evidence does show he wanted an announcement about an investigation, and the evidence is silent about the follow-up. That absence of evidence, in my mind, is not sufficient to convict. We can certainly draw an inference that he didn't care about the actual investigation, and it is a reasonable inference, but not enough in my mind to remove a President.

Much of the impeachment trial turns on drawing inferences from incomplete facts. After all, Trump has refused to allow his subordinates to respond to subpoenas. I think a Senator could draw an adverse inference from this behavior. I would be hesitant for doing so, for reasons I advanced in an earlier response to Ilya.

5. It doesn't matter if other politicians act to promote their re-election campaigns. Trump withheld foreign aid in violation of the Impoundment Control Act. 

Specifics matter here. Far too many commentators casually write that GAO concluded that President Trump violated the Impoundment Control Act. This claim lacks precision. The GAO found that the Office of Management and Budget violated the Impoundment Control Act. Not the President. This difference matters.

Let me state my answer differently. If the President violated the Impoundment Control Act, we would not need to consider the nebulous charge of "abuse of power." Running afoul of a statute could itself be a ground for impeachment. For example, President Johnson was impeached for violating the Tenure of Office Act. But the House did not make the specific claim in the Articles against Trump. Instead, they relied on the nebulous charge of "abuse of power," premised on a wide range of activities.

There could be grounds for impeachment with respect to the ICA. Seth Barrett Tillman and I flagged this issue on Lawfare more than a month ago:

In the impeachment context, Trump's liability could result from knowingly failing to take care that his subordinates faithfully executed the law. We say "knowingly" because it is unreasonable to expect any president to be intimately familiar with every action taken by every subordinate. Additionally, Trump may violate his oath of office if he personally directed others not to make a timely transfer of funds with an intent to block the statute's implementation.

As of now, we have only indirect evidence that the President ordered the hold. I think it is reasonable to draw that inference that he issued such an order, but we have not heard from principals who actually heard that order from Trump. (They have not been permitted to testify.) We do not have evidence that Trump knowingly ordered his subordinates to violate the statute. At most, I think it is safe to presume Trump thought ordering such a hold was lawful. GAO, and Congress, may disagree. But I think you need a higher burden of proof to establish a violation of the Oaths Clause.

6. You are normalizing Trump's dangerous behavior.

The President is being impeached based on specific legal arguments. Those arguments are either right or wrong. I view my role in this process as limited: offer my opinion on whether those arguments are right or wrong. I freely concede that imposing a higher burden of proof would allow this President, and future Presidents, to engage in abusive behavior. On this point, Ilya Somin and I largely agree. I think this tradeoff is justified. Ilya does not. The potential for future abuse does not eliminate the present-day debate about the validity of these articles.

7. You still haven't persuaded me.

I am not surprised. My goal is not to persuade people. Truly. I recognize that on most issues, people have already made up their minds. Especially on a polarized issue like impeachment, most people are dug in. I do not write to change minds. I write to articulate my position and plainly and cogently as I can. If people see a new perspective, but remain unpersuaded, I will claim victory.

Far too many people (academics especially) view persuasion as something of a blood sport. They will stop at nothing to convince other people they are wrong. Most Twitter threads, or list-serve exchanges, that go beyond two or three volleys, reflect this dynamic.

The past three years have taught me a lot about myself, and how I view others. I have tried, quite consciously, to dial back my rhetoric, proceed deliberately, and avoid assuming the worst in people. I always try to take a step back and recognize that people can hold different views in good faith. I will leave you with a mantra I often repeat: "I do not know nearly as much as I think I do." Whenever you become irate at what someone else said, pause, repeat these words of wisdom, and then consider how to proceed.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. HA!

    You mention space constraint but YOU wasted space on the Johnson/Marshall story (which really was NOT pertinent).

    YOU wasted space writing: “. . . the House of Representatives has transformed presidential impeachment from a constitutional parachute — an emergency measure to save the Republic in free-fall — into a parliamentary vote of ‘no confidence,’” as if the only time impeachment should be used is when we’ve already reached crises mode.

    The lady doth protest too much, methinks.

    1. Well I guess when you start getting invited to write Opeds for the NYT then you can show us all how it’s done.

      But one thing you should probably consider is the Times has probably run north of a hundred opinion pieces on the impeachment, so one reason they would ask Blackman to write an Op-ed is to get something new to keep their readers interested and engaged. You may think it’s more effective to hammer the same old points without digressing, but maybe it’s not either effective or engaging.

      1. “so one reason they would ask Blackman to write an Op-ed is to get something new to keep their readers interested and engaged”

        It’s probably similar to the reason the Washington Post publishes the work of Gary Abernathy — a misguided stab at diversity.

        In Abernathy’s case, at least, it’s ‘we already publish plenty of reasoned insight from qualified authors, so let’s leaven that with something from a nondescript right-winger in the backwater.’

        Sounds goofy, but a few decades ago it was popular in newsrooms to send a reporter to the streets to interview cab drivers, hairdressers, and junior high schoolers for a ‘man in the street’ sidebar concerning the strategy the United States should adopt in nuclear weapons treaty negotiations.

        1. It’s a sweet job for Abernathy though. A typical column defends Trump’s latest blundering outrage, justifies that defense without any actual reason or argument – laying everything off his fellow mid-westerners (“that’s just the way the heartland rolls”) – and then tosses in some sneers against Hollywood elites.

          His damn columns must practically write themselves

          1. Sweet, in the sense it’s the closest that guy could ever come to being associated with real journalism, but as a “job?” I figure he gets three or four hundred bucks every couple of weeks. It’s been decades since I worked for a newspaper, but if I took that gig I would lose money on it every time I wrote something.

    2. You mention space constraint but YOU wasted space on the Johnson/Marshall story (which really was NOT pertinent).

      It also could be that you skimmed his post too quickly and missed: “The editors also asked me to talk about a few other issues that I would have preferred to exclude.”

  2. These posts are remarkably thin skinned about random commenters.
    But you managed to wedge some substance in there.

    It is quite a coincidence that Trump’s nonstandard practice of requiring the announcement over the investigation happens to directly align with what someone who wanted dirt on his political opponent for personal reasons. And what the investigation was about, considering all the other areas of corruption in the Ukraine. And not going through the DoJ.

    At some point, your concentration on each tree as insufficient becomes willful blindness of the forest in front of you.

    I’m also surprised that you think allowing a President to abuse their power is a fine price to pay in order to prevent spurious impeachments, considering the numbers required for removal. Well, not really surprised, but come on, man, look at the implications of what you’re arguing for! It’s not very limited government, I’ll tell you that.

    1. If impeachment is so important why isn’t everyone calling for Obama’s impeachment for bombing brown civilians and sending pallets of cash to terrorists?

      “It’s not very limited government, I’ll tell you that.”

      1. I got this one, Sarcastro. Nobody is calling for impeachment of President Obama because President Obama left office in 2016. As you seem a bit confused, today is January 25, 2020. Make note of that because tomorrow it will be different.

        Also for your records, Donald Trump was elected president in November of 2016 and took the oath of office in late January, 2017.

        1. Hah! It’s January 24th. Self-burn.

          1. Will we ever get an edit function? Would it do any good for everyone to band together and boycott all partisan bickering until we get one? As with the women in Lysistrata, I’m sure our demands would be immediately be met….

          2. No it’s the 25th over here in Asia now, happy Chinese New Year.

          3. You get credit for recognizing and acknowledging that point, OtisAH.

        2. Nobody is calling for impeachment of President Obama because President Obama left office in 2016. As you seem a bit confused, today is January 25, 2020.

          If you’re going to mock people for being “confused,” you might want to do it over something that wasn’t just presented here about a month ago as plausible.

    2. If you think the his posts are thin skinned you should read some of the commentators when there is some pushback.

      I can’t count the times I’ve been called a clinger, and I don’t even know what I’m supposed to be clinging to, I have a holster for my gun. Maybe it’s my phone, and I guess that’s probably accurate, but I’m still not sure what he means by it.

    3. In other words:

      All responses that aren’t agreements show you’re “remarkably thin skinned”.

      If you answer criticism, you have a bad temperament.

    4. These posts are remarkably thin skinned about random commenters. But you managed to wedge some substance in there.

      Josh is the Pat Cipollone of David Bernsteins.
      (You’re welcome, Josh. I’m sure you consider that a compliment, and to some extent I suppose it is.)

  3. After all, Trump has refused to allow his subordinates to respond to subpoenas. I think a Senator could draw an adverse inference from this behavior. I would be hesitant for doing so, for reasons I advanced in an earlier response to Ilya.

    I just reread that response, and did not see your reasons for refusing to draw that inference.

    1. I’d assume the hesitation would be because Trump only did that after a couple years of abusive investigations.

      1. The only investigation he was subjected to before now was Mueller’s, who let him off easy. Mueller never asked to question any witnesses with knowledge.

        1. lol… only…

          Two years and 40 million dollars of taxpayer money… supposedly Putin’s puppet, literally hitler, also supposedly a complete moron, and after all that, nothingburger.

          Only…

          Isn’t this connected to a libertarian website?

        2. Wait, what? How much time did he spend with the Presidents council Don McGahn?

          The only thing Mueller let Trump off easy was letting him ask written questions, and that was only because Mueller and his team were unable to articulate any questions they couldn’t resolve thru other sources of in writing.

        3. That is simply not so, captcrisis. He was investigated by the FBI starting before the election. How could you have missed that?

          1. Clinton willingly testified under oath. Why not Trump? As to things that were actually matters of state?

            1. What drugs are you taking?

      2. (1) Did presidents before Trump have the right to throw a blue-faced temper tantrum because of “a couple years of abusive investigations”

        (2) Will presidents after Trump have that right?

        Specifically, the right to ban all cooperation with the legislative and judiciary branches of government without even an attempt to claim executive privilege. There’s always danger in defining norms down to the lowest possible denominator. Are you sure you want to do that for a sleazy huckster like Trump?

        1. I haven’t seen the temper tantrum, but previous Presidents HAVE ordered their subordinates not to comply with subpoenas, only relenting after they lose the subsequent litigation.

          1. Brett, have you seen a president refuse all cooperation as opposed to specific subordinates or documents. Have you seen a president refuse all cooperation without any specific reference to executive privilege? Do you think that’s constitutionally permissible, particularly after a vote of impeachment? Is that the standard you want to see in the future, even with a Democratic president?

            1. Yes, but the President had ample reasons for refusing cooperation: He looked down Pennsylvania avenue sized up Pelosi, Schiff and Nadler and knew he could roll them.

              1. More to the point, Schiff was refusing to allow Presidential counsel attend the hearings in order to assert Executive Privilege and Executive Immunity – first asserted by George Washington.

          2. “I haven’t seen the temper tantrum”

            . . . says the guy who appears never to have heard of Twitter.

          3. I haven’t seen the temper tantrum,

            Yes you have. You just consider them cute.

            1. Speaking of temper tantrums, the latest news is ABC possesses a recording by Lev Parnas (or Igor Furman) from a meeting with Trump on 30 April 2018. Trump is heard saying this about Ambassador Marie Yovanovitch :

              “Get rid of her Get her out tomorrow. I don’t care. Get her out tomorrow. Take her out. Okay? Do it.”

              Some points about this :

              1. April of 2018 ?!? That pushes Trumpian sleaze on Ukraine back further than any previous known date.

              2. Our president has repeatedly lied about his association with the crooks Parnas & Furman. These are clumsy stupid lies, falling one after the other as each one is disproved in turn. Of course, even DJT’s most abject bootlicking supporters know he’s a compulsive liar. Even so, this latest disclosure is pretty stark.

              3. Please remember, Trump isn’t directing his Secretary of State to ask Ambassador Yovanovitch for her resignation. Instead he’s telling two low grade thugs to “take her out”

              4. Kinda like the Ukrainian extortion in general. DJT’s lickspittles claim it as his “normal prerogative”, but can’t explain why he himself treated it like a criminal enterprise.

              5. And Parnas / Furman did treat it like a criminal endeavor, funneling illegal campaign contributions to former congressman Pete Sessions (R-Tex.) to purchase an anti-Yovanovitch letter from Sessions to Pompeo.

              6. The majority of Americans who think Trump’s actions on Ukraine were sleazy and unethical will probably go up a few more percentage points. More GOPers have to worry how they’ll look after the Senate trial ends, given the evidence of Trump’s misdeeds will continue to ooze out.

              7. For all that I actually have some sympathy for Trump here. Corrupt Ukrainian officials wanted Yovanovitch gone because of her anti-corruption campaign. Giuliani wanted Yovanovitch gone because he was peddling his “services” to those same officials, even while trying to buy Biden dirt from them. Parnas & Furman wanted Yovanovitch gone because they were trying to horn into the Ukrainian energy market, and thought she was in the way.

              But Trump? He probably wanted her gone just because people told him she was saying bad things about him. Because he’s an moron, as easy to manipulate as a dim-witted child……

      3. Nothing abusive, Brett.

        As captcrisis says, Mueller let him off easy.

        Read the report.

        1. Mueller didn’t “let off” anyone; there was simply nothing there to pursue.

          1. It’s kind of funny. The clearest end point of Mueller’s investigation was his appearance before Congress on 24 July 2019, when Mueller testified the investigation found no evidence Trump colluded with the Russian effort to aid his election.

            The next day, 25 July, Trump attempted to extort collusion from a foreign government to aid his reelection. Of course attempts to strong-arm the Ukrainians had been underway for months before that, but the juxtaposition between those two days is pretty unsettling. Three points :

            (1) That’s how a criminal’s mind operates: Leave the courthouse one day, start a new scam the next.

            (2) It’s pretty clear evidence if Trump isn’t held accountable he’ll just continue his abuses. Tell that to a Republican today…

            (3) Maybe we’re just a phone transcript away from knowing the whole Russian story. Certainly the people who said Trump would never collude with a foreign government for election advantage look like idiots now.

            1. A nitpick, but it supports your point (3): Mueller didn’t say there was no evidence Trump colluded with the Russians. He said there was insufficient evidence to allege a conspiracy.

          2. Nothing to pursue, and he still threw in that gratuitous “not exonerated” line, despite the fact it wasn’t within his responsibility or power to “exonerate” anyone.

            1. The “not exonerated” line applied only to obstruction of justice, where there were things to pursue. By implication, he was exonerated on collusion. Additionally in my opinion, his likely obstruction of justice didn’t rise to an impeachable offense because he was motivated by stopping the narrative that Russia helped him win, and doing so is in no way corruption of our government.

              It wasn’t until the Ukraine affair, that I changed my mind on impeachment.

    2. I just heard Lindsey Graham saying he wouldn’t advise any president to allow his NatSec advisor, Chief of Staff, or SOS to testify. I think he is getting fully backed up on that by all 53 GOP senators too, so no adverse references there.

      1. Lindsey Graham can kiss my ass.

        He’s a spineless Trump toady, who didn’t even have the guts to stay in the chamber when the Democrats played clips of his opinions during the Clinton impeachment.

        What a POS that guy is.

        1. I doubt seriously Lindsey Graham will ever get his nose out Trump’s ass long enough to kiss yours.

          1. Why should he? He likes it. Trump likes it. Neither has anything better going.

        2. “Democrats played clips of his opinions during the Clinton impeachment”

          The little poisoned toad Nadler has the same type of video showing a reversal from Clinton.

          1. Everyone still in Washington has flip-flopped their opinion from the Clinton impeachment, why should Graham be any different than Pelosi, Schumer and Nadler?

            Everyone except McConnell, he thought the Clinton impeachment rules were good then,and was part of the 100-0 vote, and he still thinks they are good.

            1. McConnell claimed he would follow the Clinton rules, changed them, then relented after being call on it. This is well known and makes your statement a falsehood, you bigoted rube.

    3. He didn’t want to? Since when does someone have to justify not inferring something that’s factually unknown?

      1. That’s the only reason I can think of.

        And normally, refusing to draw an obvious inference from plain facts, is a pretty good indicator that you’ve prejudged everything,

        1. Or that you care not to condemn people unfairly.

        2. The problem with that, Bernard, is that the Democrats seem to think they are entitled to their own facts. And those are often at odds with reality.

          1. No Publius.

            The Democrats have presented a mountain of real facts. The Republicans have presented utter bullshit – not a fact there. All they do is piss and moan and tell lies.

            Cippoline even claimed Republicans weren’t allowed in the impeachment hearings. That tells you how respectful of facts they are. Now Blackburn is questioning Vindman’s patriotism. That’s typical of how the GOP has fought this: lies, stupidity, personal attacks.

            1. No they haven’t. Schiff and Nadler have been caught misquoting and selectively editing quotes to manufacture so-called “evidence.” They are liars, and they have been caught numerous times. The House hearings were a sham, with Schiff, et.al., stopping witnesses from answering questions from Republicans, and Republicans not allowed to bring their own witnesses. Utter bullshit.

              By the way, the Republicans haven’t had their chance yet, never having had it in the House, and only coming up next week in the Senate.

    4. There.Were.No.Subpoenas.Issued by at least the HPSCI.

      Read what everyone is purporting to classify as a “subpoena”. They weren’t threatening court action to enforce them, instead merely threatening finding Trump in contempt of Congress. No legal poena (penalty) threatened => not a subpoena.

      Moreover, there had been no delegation at that time of subpoena power in an impeachment inquiry by the entire House. There had been for A1S1 Oversight, but neither committee had oversight authority over foreign relations, and if they had had, it still didn’t matter, because Congress only has oversight authority over agencies and departments that they created. The Presidency was created by the same Constitution that allocates power to Congress, and thus is not subject to Congressional Oversight.

      To summarize – these two House committees did not have subpoena power over the President and his closest aides because they are not subject to A1S1 Oversight (and esp by those two committees) and the House as a whole has to explicitly delegate subpoena power in the case of an A1S2 impeachment, and that wasn’t done until after Schift’s HPSCI had essentially completed its investigation.

      1. Congress has no oversight power regarding the President?

        So you’re opening up your own law school, with your own absurd legal theories. Good luck with that.

        1. That’s not what he wrote, Jason. And what Bruce Hayden did write is entirely correct.

          This wasn’t and isn’t about legislation, and *at the time* no House vote had authorised the issuing of subpoenas under the impeachment power.

          1. It seems your grasp of English is incomplete:

            “The Presidency was created by the same Constitution that allocates power to Congress, and thus is not subject to Congressional Oversight.”

            That is PRECISELY what he wrote.

  4. You say that you are hesitant to draw an adverse inference from Trump refusing to allow his subordinates to respond to subpoenas, for reasons given in your response to Ilya Somin in part of an earlier post. That is confusing, since in that section of the linked post you just discuss your disagreement with him over the “n guilty men” standard. In fact, that whole linked article only mentions subpoenas twice, in contiguous sentences, discussing how the federal courts litigate subpoena cases. By this point in your article, you have already moved from the question of whether Trump engaged in impeachable conduct, to the question of what “to do about a President who ‘engages in grave abuses of power’ that do not rise to the level of impeachment?”

    Substantively, it doesn’t seem that you can possibly be right here. Especially in the context of Trump’s recent statements that the White House has “all the material” and Congress doesn’t “have the material,” not drawing an adverse inference seems like unreasonable skepticism. https://www.washingtonpost.com/politics/2020/01/22/after-republican-senators-block-new-impeachment-evidence-trump-boasts-about-what-hes-withholding/

    1. It seems clear that Trump thought the House was overreaching and possibly interfering with his legitimate prerogatives.

      Why should he or anyone else turn over material to a biased investigation without first jealously guarding their own rights and seeking redress through the courts?

      I personally have received a subpoena as a third party demanding documents which should have been covered by privilege, with a short return date. That essentially precluded me from informing others involved like my own client and my professional liability insurance carrier, them engaging council on my behalf and then reviewing the documents requested.

      Ultimately it all worked out but not without receiving some testy phone calls from the lawyer who issued the subpoena.

      1. “possibly interfering with his legitimate prerogatives”

        Uh huh. That would be his legitimate prerogative to trade the favor of the United States government for personal benefit, through a secret shadow “foreign policy” run thru his private attorney and two low-grade crook legmen.

        God forbid the House be permitted to oversee “legitimate prerogatives” like that….

        1. How much corruption is allowed before the Biden’s are investigated?

          1. What corruption?

            (1) Hunter was given a place on a board because of his name. This was at the same time company gave another board position to an ex-president of Poland (for the same reason). Simultaneously Burmisa brought in a well-know financier as their board chairman (Alan Apter), and hired established international firms to audit its reserves and financial results. Was this all cosmetic? Sure – Extreme Corporate Makeover. Should little Hunter have chosen a better way to leech off his daddy’s name? Without question. But people are given board positions for name, status, and celebrity ever day. You need something more….

            (2) Joe Biden pressured Ukraine to fire prosecutor Shokin. But that was by order of Obama, per the publicly-announced policy of the State Department, for policy aims of the U.S. government, with bi-partisan support from Congress, following the wishes of the European Union, and in conjunction with similar pressure from the World Bank, IMF, & European Bank for Reconstruction and Development. Biden’s pressure was cheered by all reform and anti-corruption groups in Ukraine, who applauded it’s success. The contrast with Trump couldn’t be greater.

            So what corruption?

          2. A person closed a site he used to criticize the improper use of the apostrophe because he decided he was fighting a losing battle. He fought the good fight.

            1. Sigh. I get it right most of the time. In my defense, I’m batting a thousand on your/you’re (almost).

        2. Person uses all possible defenses in adversarial conflict. This and a healthy cow who emits blue gas at 11!

      2. Turning over materials is one issue, but my point was about Trump’s obstruction of the investigation more broadly. Refusing to allow people to respond to subpoenas is a different issue altogether. That is more like spoliation than is the refusal of Trump himself to respond. I would prefer that presidents cooperate with impeachment investigations as a general rule, but that is not what I’m talking about here. The claim by Blackman that I am responding to here is that drawing inferences against the President’s position is not warranted, when the reason for drawing those inferences is that the President directed his subordinates to refuse to respond to subpoenas. I don’t actually see any argument by Blackman on this point, and it runs counter to the way adverse inferences frequently run in both criminal and civil litigation, and in common sense. My point about the President’s comments about who has what material is just to show that there is a broader pattern to the President’s behavior here that is itself suspicious.

        1. He stated that his weapon for refusing was institutional. He was protecting the right of the Presidency to assert Executive Privilege, and esp here, Executive Immunity, since Schiff was refusing to all Presidential counsel attend the hearings in order to assert these privileges. That would be horrible precedent to set, that a House committee could bypass these two century old privileges by merely denying the White House the ability to send attorneys to the hearings in order to assert the privileges, as required

          1. ‘Donald Trump, institutionalist’ is a poor argument even by bigoted clinger standards.

      3. It seems clear that Trump thought the House was overreaching and possibly interfering with his legitimate prerogatives.

        No. It seems clear he is covering things up.

        1. Bernard, “[n]o. It seems clear he is covering things up” is like saying that anyone who avails them self of their Fifth Amendment right to remain silent is guilty, because they must be hiding something that proves their guilt. Is that the standard you seek? Unquestioning compliance with the House’s demands for anything and everything?

          1. What did the Supreme Court say about using invoking the Fifth as evidence of guilt?

            1. Did they say it’s good enough for the likes of bernard11 but not good enough for serious people who understand western legal systems?

              1. I sure hope you’re not a lawyer.

            2. The Fifth? What does that have to with anything?

              Even if this were a criminal trial, which it’s not, Trump couldn’t use the Fifth to prevent others from testifying. Nor could he use it to withhold documents. And if he did try to prevent testimony for others I think we could draw appropriate inferences.

              So grab a thicker straw.

              1. It was an analogy, Bernard, apparently lost on you. The construction was ‘saying xyz is like abc.’ Get it?

          2. When did Trump invoke the fifth?

            Also, what is the problem with honoring document and testimony requests from Congress? Or subpoenas?

            1. The House Democrats have taken a call transcript and the testimonies of a handful of civil servants and then loudly and publicly speculated that the Ukraine is:

              + our staunch and dependable ally bravely fighting the Soviet Bear so that we don’t have to
              – a country of craven cowards all lacking the backbone to tell Trump to shove his quid pro quos and keep them out of his personal political machinations
              + successfully combatting the erstwhile systemic corruption as the DOD confirmed and shown by its election of an outsider to drain the swamp
              – is now presided over by a joker so lacking in spirit and/or virtue that he would lie brazenly and repeatedly to protect his relationship with a corrupt US president

              I’d say the problem with honouring document and testimony requests from *this* Congress is the same problem one seeks to avoid by keeping loaded guns out of the hands of children.

          3. If you assert your fifth amendment rights, it can’t be held against you in criminal court. But in any other context (such as civil litigation), it is proper to draw an adverse inference against one who utilizes the right.

            And if you hide or destroy documents, or make arrangements to keep a witness from testifying — paying for them to leave the jurisdiction, for instance — it is proper to draw adverse inferences against you.

  5. “My goal is not to persuade people. Truly. I recognize that on most issues, people have already made up their minds. Especially on a polarized issue like impeachment, most people are dug in. I do not write to change minds. I write to articulate my position and plainly and cogently as I can. If people see a new perspective, but remain unpersuaded, I will claim victory.”

    I commend you on this position, largely because it’s a rare bird. There are two approaches to arguments: one, where it’s about an exchange of positions and critiques, with a goal of each side forced to consider other perspectives and, ideally, mutual satisfaction with the experience; and two, where the goal is to win (or, perhaps more accurately, the other side has to lose), leaving one side happy and the other humbled.

    Neither option is necessarily superior or inferior to the other, but depends on circumstances. Sometimes, after all, an argument has to produce a win/loss result so that an action can be taken. Most often, tho, we’d benefit with a sincere exchange of positions rather a preset intent to arrive at a conclusion (i.e., I win because I am superior and smart/you lose because you are deceitful and stupid). But when all parties don’t agree on the point of the discussion—exchange or armwrestling—the result is frustrating all around. The responses you received from Adler and Somin, for example, suggest a common purpose of exchange and critique, and were enlightening to read; comments from the peanut gallery suggest those critics think it has to be about winning and losing.

    1. That, and this were refreshing: “Far too many people (academics especially) view persuasion as something of a blood sport. They will stop at nothing to convince other people they are wrong. ” I would substitute ‘attorneys’ for ‘academics,’ however. As a prosecutor in a large office, I continue to be amazed and disappointed at the certitude of so many of my colleagues and of close friends in the defense bar. As I get older I become less convinced that I’m sure I’m right, while others only get more firm in their defense of their beliefs about the law, about policy, politics, etc. Ironically, when it comes to the law, those most certain of their interpretations seem to be wrong most frequently.

      1. Some of the best advice I ever received from a prof as an undergrad was to approach every argument with the idea that I might be wrong or that there was a better perspective out there. Argue your position, sure, but always be open to the idea that the other guy might be right and improve your understanding. If you go into a discussion certain that you’re right and the other side is wrong, you’re operating more from ego than intellectual interest. Without risk to your beliefs, it gets boring pretty quickly.

  6. “After all, Trump has refused to allow his subordinates to respond to subpoenas.”

    Properly. The accused witch has no reason to co-operate with the people holding the matches.

    1. Unless we count the Constitution as a reason. But nobody who kneels at Trump’s feet gives a shit about that document.

  7. Professor Blackman does a good job at sounding reasonable, but he’s not very convincing to anyone not vested in excusing Trump’s behavior. Here’s an analogy : Clinton claimed he didn’t lie under oath because (a) Oral sex isn’t sex and (b) It depends on the meaning of “is”.

    It’s possible there was a corresponding professor to Blackman who argued (a) If you squint your eyes just right, oral sex isn’t sex, and (b) The word “is” can be very ambiguous. This professor would then say Clinton’s belief in these tenuous arguments may be deeply-held and sincere. Final step? It’s a “legal question” and the mere possibility of (a) & (b) absolves Clinton.

    Now, it’s possible someone gave us 900 words on that – even probable. But that doesn’t mean we have to take that hypothetical professor seriously. Just like we don’t take Blackman seriously……

    1. Clinton was acquitted.

      1. So what? Trump will be acquitted. The instance that happens that doesn’t automatically/magically make Professor Blackman’s arguments right.

        1. You can credibly make that argument.

          Those who impeached Trump have no credibility making such an argument.

  8. C’mon man, if you don’t have the courage of your convictions then don’t have any.

    1. Not everyone wants to be a jerk about academic opinions about factually unknown info.

  9. Since this is the most recent impeachment thread, I’ll use it to pose a request:

    I’d like to see the various conspirators weigh in on what sort of judicial collateral attacks might be successful in (at least temporarily) halting the Senate trial. Some examples:

    If the President asserts executive privilege, could he go to court to prevent further testimony?

    Could some potential Senate witness get an injunction to quash a Senate subpoena?

    If the Senate decides to vote to remove the President from office, but on grounds separate from those approved by the House, could the President seek an injunction as this authority is solely granted to the House?

    This even touches on judicial power; if some random judge in Arkansas imposes a national injunction requiring the Senate to cease its hearings, is that binding?

    1. It is extremely unlikely that any court would hear such a requestto interfere with a “solely”mandated Senate obligation.

      1. And if he did the Supreme Court would hand his head back to him with an unsigned per curium before the ink was dry and issue an order banning any lower courts from issuing any further orders about the impeachment.

      2. The Supreme Court has said that impeachment is solely within the power of Congress, but did not go so far as to say that any challenge to Congress’ authority was unreviewable.

        To use an extreme example, the Senate could not choose to execute someone using the impeachment power.

    2. Most of the Conspirators — the hard-right ones, especially — are ducking most things Trump.

      They probably figure they can shrug the stink off their movement conservative positions down the road if they keep their heads down today. They’re wrong. They may also figure Trump may be the final Republican making federal judicial nominations during the relevant periods of their careers, and they don’t want to anger Trump.

      #ConservativeCourage

  10. I just don’t believe you when you say Trump believed an announcement of an investigation meant there would actually be one. No one announces an investigation if they are serious about it. Announce it, and evidence dries up, witnesses flee.

    1. ” No one announces an investigation if they are serious about it.”

      Mueller Investigation? Whitewater? Monica Lewinsky? Trump Impeachment?

    2. Can you explain the phone call then? The actual conversation where Trump said “can you look into it… It sounds horrible” with no mention of the word announcement , press conference, news release.

      1. Setting aside that the document is not an exact transcript, once again: the phone call was not the start of this process. The phone call was the culmination of months of pressure from Trump and his gang. He did not need to lay out in detail what he wanted, because that had already been communicated. He was just reminding Zelinsky what the situation was.

    3. In other words: no genuine investigation was ever announced
      M

  11. For once, a FAQ that is actually about questions frequently asked.

  12. Professor Blackman….Keep writing. I don’t always agree, but I enjoy learning new things. By and large, that is true of your colleagues here at VC as well: Somin, Adler, Volokh and Bernstein come to mind.

    Special shout out to John Ross and his Short Circuit series. Reading Short Circuit on quiet Friday evenings has become a new cherished habit.

  13. Mr. Blackman constructs well-formed arguments that I happen to disagree with (I learn the most from people I disagree with).

    Blackman’s responses ignore a basic fact of life in the United States today. We are a split society and I am not referring to liberals vs. conservatives or Democrats vs. Republicans or even secularists vs. the religious set.

    What I am referring to is that some of our society is comprised of critical thinkers; intellectually curious individuals who are most persuaded by evidence. Then there is the selectively observant faction of our society which seems dedicated to creating a virtue out of confirmation bias. Ms. Conway provided the perfect example when she referred to “alternate facts.”

    Trump exists in an alternate reality. Don’t blame Donald. Blame us as a society. A pathological liar (who I believe is profoundly ill) has not been widely rejected as he should be. Apparently a large section of our society likes being lied to if the lie is something that they want to hear. We have abandoned our respect for absolute truth.

    Therefore, what Mr. Blackman is reacting to are not valid points of disagreement. People are expressing their frustration more than they are offering serious counterpoint. For me the frustration is not so much with Trump but with his mindless supporters willing to make preposterous arguments that they don’t really believe.

    We all know what Trump did and why he did. We can have an intellectually honest argument about whether or not his conduct rises to level necessary for impeachment. We never really get there because we are still arguing over the facts and the intellectually impoverished are trying to distract us with irrelevant BS.

    1. So we all know what and why?

      Quite a talent you have there.

      So since you are a mind reader tell me why the CEO of Burisma hired Hunter, what were they thinking and why?

      What was Joe thinking and why when he insisted on the firing of the prosecutor investigating Burisma?
      And the investigation was dropped.

      Such as mystery, hmm let me take a shot.

      Burisma hired Hunter as a shield against any investigations and daddy delivered

      1. So since you are a mind reader tell me why the CEO of Burisma hired Hunter, what were they thinking and why?

        When Hunter Biden was appointed to the board of directors — something done by shareholders, not the CEO — they were thinking that they wanted to burnish the image of their company, which was previously known for corruption, so they wanted some high profile outsiders to help with that process.

        What was Joe thinking and why when he insisted on the firing of the prosecutor investigating Burisma?

        He didn’t. He insisted on the firing of the prosecutor that had stopped investigating Burisma. For the same reason that the rest of the U.S. government, the EU, and the IMF all wanted the prosecutor fired: because the guy was corrupt and was failing to investigate corruption.

        1. Sure thing LOL,
          So who was the majority shareholder? Burnish an image? Who gives an F about Hunter Biden and Devin Archer, who actually had the good sense to quit because it was too shady for him.

          What?? Shokin was investigating Burisma. That investigation was allowed to expire under the new prosecutor who is being investigated for guess what? corruption. So how do you “burnish an image”? You don’t have an investigation that’s how.

          The rest of the US government the EU and the IMF , LMFAO. So no way there is any corruption there? Google IMF and corruption. The Poles have already said they had conflict of interest concerns with relatives of their elected officials.

          Here’s what happened:

          1) Hunter was hired as a shield
          2) Shield worked since investigation was dropped
          3) Hunter the dope stays on since its too much gravy to turn down until dad runs for president. Dad is a few shy of a full load also.
          4) Archer was smart enough to bail early

          .

        2. You and Arthur seem to be a bit nervous these days. Flacking for the Bidens will do that to you, and waiting for the other shoe to drop will grind you down. Maybe it’s the concern that the judge in Arkansas will finally bring Hunter to heel and discover a stash of twenty million or so. Or is it the fear that someone as weak as Hunter may crack and spill the beans?

          In any case this oligarch blinded by the light of stardom bit must be hard to do with a straight face. I don’t think that you or even Arthur believe one word of this, but you somehow feel that it is important to keep your finger in the dike.

      2. I expect to learn — all of this stuff will be revealed eventually, in a manner especially painful for Republicans — that Burisma courted Biden the Lesser much as NBC hired Jenna Bush, or some hedge fund likely put Chelsea Clinton on the payroll, or Neil Bush became involved in government-backed finance, or a Kennedy or two got board positions somewhere, or John Prescott Ellis (a Bush) became a “journalist” at Fox, or Clarence Thomas’ wife becomes a big-dollar lobbyist, or an young Al Gore lands at a newspaper, or a thousand similar examples.

        The relatives of wealthy, influential people — especially those in government — get hired for positions they don’t deserve, even if they are dullards.

      3. Burisma hired Hunter as a shield against any investigations and daddy delivered

        You are out of touch with reality. Please, what sort of mass psychosis has overtaken Trump supporters?

        1. So we’ve investigated it and no way Hunter had an actual job there we were just unaware and wrong about the no show high pay job?

          Because that happens all the time in the real world.

          Dude, you the one in an alternate reality.

          Hunter’s job was a no show and he didn’t know shit about Burisma’s business. None of that was his job. His job was to make the investigation go away. He with the help of dad delivered.

          But OK lets see if there was probable cause to investigate the Biden’s. Lets have them testify, OK?

          Nothing to hide right, no coverups!

          1. Wrong, Kushner’s sister did the same thing Hunter did—she traded on her brother’s name in China. Neither Kushner nor Biden bear responsibility for the unethical behavior of their family members.

          2. “Hunter’s job was a no show and he didn’t know shit about Burisma’s business”

            At the exact same time Burisma hired Hunter they also gave a board position the ex-president of Poland, Aleksander Kwasniewski. Guess what : Aleksander “didn’t know shit” about energy commodity trading either, he was just another name rented for respectability. Like Hunter. And that’s not all.

            Burisma also installed the well-regarded investment banker Alan Apter as board chairman, and brought in prestigious accounting firms to audit its finances – all at the exact same time they hired Hunter. It was a systematic campaign to purchase normalcy, and I bet the money spent on little Biden was the smallest, most penny-pinching measure they took.

            So let’s sum up your problems, wreckinball:

            (1) There was no investigation of Burisma when Hunter was hired or Joe Biden pressured Ukraine. There hadn’t been for well over a year. All your fevered imagination can’t create this fantasy “investigation” out of thin air.

            (2) Here’s a limited list of those who wanted the prosecutor Shokin fired : President Obama, the State Department, a bi-partisan collection of Senators (we have Republicans on record with a letter), the European Union, the World Bank, the International Monetary Fund, the European Bank of Reconstruction and Development, every single reform or anti-corruption group in Ukraine itself.

            And opposed to all those facts we have your sad & pathetic trolling little self. Some fights just aren’t fair……..

            1. The only thing Hunter is guilty of is taking advantage of corrupt Ukrainians…and smoking crack. 😉

              Btw, when Biden does win and Republicans bring this nonsense up I am just going to say it took Biden 6 hours to do what Trump couldn’t get done over months—strong arm a foreign leader to do his bidding. So Biden is feared by foreign governments while Trump was ignored.

              1. If Biden is the nominee, and then goes on to win, we’ll get 4 years of “Hey, remember when I used to hang around with this guy?”
                An upgrade on Trump, but only marginally, and likely not very effective in the long-term.

            2. Shokin seizes assets of Zlochevsky 2/4/16
              https://en.interfax.com.ua/news/general/322395.html

              Shokin fired 3/29/16 after Biden extorts the action by withholding a 1 billion dollar loan guarantee.

              Zlochevsky’s assets returned and he is able to come back to Ukraine after fleeing.

              Nothing to see here. After all EU, IMF, EU, IMF. Did I say EU, IMF?

          3. Hunter’s job was a no show and he didn’t know shit about Burisma’s business. None of that was his job.

            That part’s true – none of that was his job. You don’t seem to have a grasp of basic business concepts, though, so you don’t understand that this isn’t sinister; you don’t understand what his job was. He was not hired as an officer or employee of the company. He was an outside member of the board.

            Outside directors do not “show.” Their job isn’t to run the company on a day to day basis. And therefore, (though depending on what roles they serve on the board), they do not need to be experts on the industry the company is involved in. They need to understand corporate governance, finance, things of that nature. Which, not surprisingly, is what Biden’s role was: corporate governance. Which he did have experience with.

            1. >blockquote>Which, not surprisingly, is what Biden’s role was: corporate governance. Which he did have experience with.

              So we have now we go from Zlochevsky basking in the radiance of stardom to needing Hunter’s enormous business acumen. Congratulations David, you have now gone where no one else has dared to tread.

              1. Which, not surprisingly, is what Biden’s role was: corporate governance. Which he did have experience with.

                So we go from Zlochevsky basking in the radiance of stardom to needing Hunter’s enormous business acumen. Congratulations David, you have now gone where no one else has dared to tread.

        2. There is plenty of evidence supporting this reality. Your side has oligarchs acting like teenage girls over Justin Bieber. Some reality.

      4. You are falling for the distraction. It is irrelevant. Furthermore VP Biden did not attempt to oust a prosecutor investigating Burisma. Biden was carrying out administration policy, coordinated with European allies and the World Bank, to press for the removal of Shokin because he was NOT investigating corruption.

        We all know what Trump did and why he did it. Trump is consistent in that his ONLY interest is the wellbeing of Donald John Trump. He has never done a selfless act in his lifetime. I know Donald a bit (I knew his father better). Trump was excluded from Manhattan society because that sphere revolves around charitable endeavors.

        Once wed to a conspiracy theory people almost never desist in spite of overwhelming evidence to the contrary. Birthers are still Birthers. Q-Anon will lock up all those government pedophiles any day now. People insist that there are chemtrails. Hillary Clinton murdered Vince Foster and so on, ad nauseum.

        Allegiance to Trump is very much like a conspiracy theory. There exists a solid body of evidence that Trump is a pathological liar. People are willing to embrace the most preposterous tales regardless of contrary evidence.

    2. Not granting the premise, but having a pathological liar and mentally ill individual in charge is vastly preferable to having people like you in charge.

      Such a person might get things right by accident or become preoccupied with something shiny and waste time.

      Someone like you would use hatred of fellow Americans and an overwhelming sense of self-superiority as a justification to hurt innocent people and destroy what they have built, turning a blind eye to victims and delighting evilly when people who are not like you suffer.

  14. He asked Zelensky to look into it. He didn’t ask him just to announce it. Making stuff up is not helping an already ridiculous effort here.

    The Biden’s are corrupt as hell. They need investigated.

  15. An Op-ed in the Times about impeachment followed by blog posts about writing the Op-ed in the Times about impeachment. I can’t wait for the TikTok video about writing the blog posts!

    1. It all goes on the c.v.

      1. Blackman’s CV that he has posted online is already 100 pages (hiring committees love that!). I thought for sure the Time’s editorial would have been added already, but he must be behind in updating it. It would surely stand out among all those other lines that comprise the 100 page document.

    2. It did seem a bit self-absorbed, but then I reminded myself that he also gave us a five part series on his experience watching oral arguments in court.

      1. Most people share stories like this, or about their overnight experience in line outside a courthouse, with friends. Perhaps over lunch, or at a poker table, or while watching a ballgame.

        Not everyone has that opportunity, though. A hard-core movement conservative and right-wing climber might not be the most popular kid on a strong liberal-libertarian campus or in a modern, successful community these days.

      2. Must be a helluva guy to have as a co-worker.

      3. Yes but it was better than an oral exam at the dentist’s office.

  16. Professor Blackman, and Professor Adler, too, I’d really like to get to the bottom of this: when did President Trump as for an announcement of an investigation, and what is the evidence that he did?

    As far as I can tell now, he never did, the “announcement” thing part of a false narrative spun by his detractors.

    I read the full transcript of the phone conversation between Trump and Zelinsky, and the entirety of Trump’s mention of Biden is this:

    “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it… It sounds horrible to me.”

    That’s it. Nothing about an announcement.

    You can read the entire transcript here:

    https://www.cnn.com/2019/09/25/politics/donald-trump-ukraine-transcript-call/index.html

    To reiterate, when did President Trump as for an announcement of an investigation, and what is the evidence that he did?

    1. Here’s the beginning of the answer: Sondland. He’s the one who introduced the “announcement” narrative, never attributed it directly to Trump, and even relayed Trump’s admonition of “no quid pro quo” via text to Ukrainian officials.

      Sondland has credibility issues. “Sondland had previously faced significant questions about his credibility, and even as it was ongoing, his testimony Wednesday drew disputes from some of those he implicated. Republicans also seized on his lack of direct knowledge for some assertions, noting he admitted he never “personally” discussed with Trump the idea that either military aid or a White House meeting was preconditioned on Ukraine conducting investigations.”

      Read more: https://www.washingtonpost.com/politics/sondland-was-there-a-quid-pro-quo-the-answer-is-yes/2019/11/20/34741e3c-0b92-11ea-8397-a955cd542d00_story.html

    2. I read the full transcript

      No, you didn’t, because we don’t have the full transcript. As you’d know if you read page one of the “transcript,” where it says that it isn’t actually a transcript.

      And again, the call isn’t the only dealing between Trump and Ukraine.

      1. When you “mind read” aka make things up do you actually put your hand on a crystal ball.

        Is this Spock? maybe its a Vulcan mind melt

      2. David, you are a notpicking idiot. Everyone knows that it’s not a verbatim record of the conversation, but it is a transcript nonetheless. Are you asserting something to the effect that there was an inaudible portion that materially changes the conversation?

        Stop being such a dick.

        1. A transcript is a verbatim record.

          No, I am not asserting that there is an inaudible portion. I am asserting that it is an after the fact reconstruction based on notes, and that no part can therefore be said to be word for word. And therefore the absence of any specific word in the document can not be regarded as dispositive. In other words, “I don’t see the word announcement,” is a meaningless argument, because the fact that one doesn’t see the word in no way means it wasn’t used.

          1. At least you are no longer certain that twenty minutes had to be missing and would at some point emerge.

        2. An uneducated right-winger such as ThePublius tangling with Mr. Nieporent on legal points?

          This should go roughly as the culture war has gone.

          The clingers can hope for a miracle, I guess.

  17. Odd that those most upset about Trump asking about an investigation of corruption for his personal gain are unfazed by the amount of corruption for their personal gain.

  18. If you think the Senate is limited to what the House discovered…then you are in fact a partisan hack. The Senate should care about upholding the Constitution irrespective of what the House uncovered. Furthermore the very fact Republican senators haven’t demanded Trump drop out of the 2020 race is evidence this Senate trial is a sham because there is more than enough evidence that Trump abused his power and is not fit to be president. So nitpicking the Senate trial is absurd because impeachment should never result in a Senate trial because the Senate can do what they did with Nixon.

    1. Sounds good, so if there is overwhelming evidence we’ll have a vote convict/acquit after the defense presents?

      Sounds good because it sure seems like a waste of time repeating the same “overwhelming ” evidence 4 million times over the past 3 days.

      But you need more evidence? Why if what you have is overwhelming?

      1. I believe Republicans are morally and intellectually bankrupt so I actually would be disappointed if they removed Trump because then it would prove me wrong. So just the fact Liz Cheney and Trump hold leadership positions in the same party is all the evidence I need to convince me that the Republican Party is simply an organization for unethical people to advance their political careers.

        So the pundits that promote the Republican Party generally either want a Republican president to appoint them to a job or they make money from gullible people that vote Republican.

        1. Democrats should have arranged a jail cell for Dick Cheney consequent to torture. I hope better Americans don’t let the Republican war criminals off the hook next time.

          The can’t-keep-up rubes from Wyoming figured they should put a different Cheney chickenhawk in Congress. This illustrates why the House of Representatives (and Electoral College) should be enlarged soon, to diminish the amplification of yahoo votes in our system.

          Enlarging the Supreme Court may be more important, though.

      2. Some people are easily overwhelmed. Most of them get better when they turn 3 years old. Not all. Sad.

  19. Fact Check: Trump Raised Concerns About Corruption in Ukraine Long Ago

    CLAIM: President Donald Trump never cared about corruption in Ukraine.

    VERDICT: FALSE. Democrats’ own investigation showed that he did — long before Joe Biden, Hunter Biden, and Burisma were an issue.

    Rep. Jason Crow (D-CO) opened the fourth day of the Senate impeachment trial of President Trump by mocking the idea that Trump cared about corruption in Ukraine. “It’s difficult to even say that with a straight face,” he said.

    Crow, who has also been blaming President Trump — falsely — for Ukrainian deaths, repeated the false claim . . .

    . . . we know from Schiff’s own impeachment inquiry in the House of Representatives that Trump had previously expressed strong concerns about corruption in Ukraine.

    As Breitbart News has noted several times, State Department official Catherine Croft testified in her closed-door deposition in Schiff’s “basement bunker” at the House Intelligence Committee that Trump was particularly concerned about corruption in Ukraine, even to the point of lecturing then-President Poroshenko — in front of his whole delegation — about it:

    Croft: The President was skeptical of providing weapons to Ukraine.

    Q: Why?

    A: When this was discussed, including in front of the Ukrainian delegation, in fnont of President Poroshenko, he described his concerns being that Ukraine was corrupt, that it was capable of being a very rich country, and that the United States shouldn’t pay for it, but instead, we should be providing aid through loans.

    1. . . .Actually, even if it were true that Trump only cared about allegations of corruption against Biden involving a foreign country because he was a political rival, that would have been a legitimate reason — according to Schiff himself.

      Last April, Schiff wrote in an op-ed in the Washington Post: “If a foreign power possessed compromising information on a U.S. government official in a position of influence, that is a counterintelligence risk. If a foreign power possessed leverage, or the perception of it, over the president, that is a counterintelligence nightmare.”

      Schiff was defending the Obama administration’s decision to launch an investigation into Trump, who was then the Republican nominee for president. But the same logic would apply to Biden: it is in the national interest to know.

      1. The Biden allegations are baseless, so if Trump believed them then he should be removed via the 25th Amendment on grounds of mental deficiency.

        1. Ever since the “Alabama Sharpie” I have been utterly convinced that Trump’s mental hygiene is only a notch above Liz Cronkin’s and in serious decline.

          Most days I disagree with Rod Dreher about everything. However, when he is not shilling for the Church he is intellectually honest which is why I read his stuff. Dreher’s October polemic – “Is Trump Mentally Unstable?” – is exceptional.

          Regarding the Erdogan letter, Dreher wrote:

          “Who talks like that in real life? Who threatens another world leader like a TV mafioso? “Don’t be a tough guy. Don’t be a fool!” Who responds well to being addressed so condescendingly? Trump reportedly distributed copies of this letter to Congressional leaders today in an attempt to show them how tough he is. In fact, he demonstrated that he is a boob.
          […]
          You can bluster about the Deep State all you want, but what we know to be true about the president’s behavior in this Turkey matter is profoundly troubling, not only about his competence as Commander in Chief, but about his own mental stability.”

          1. Pres. Trump’s manner may not work with world leaders and educated people, but it causes the uneducated, the bigoted, the disaffected, the childishly superstitious, and the anti-social culture war casualties to think he is just dreamy.

            It’s also enough to scare a few Volokh Conspirator contributors into cowardly silence.

      2. ” it is in the national interest to know.”

        …assuming Biden is nominated for the Presidency. As yet, he hasn’t been.

    2. You can’t be so gullible as to see how Trumps particular concern about the Ukraine was manifesting focused entirely on Biden. This was an after the fact excuse.

      Ffs check your stories. Breitbart isn’t necessarily wrong, but google their stories to check them – they sure do have an agenda.

      Your compromising information post requires a lot of new fictional Biden BS to apply.

  20. “It is not conceivable to simply “mention” some other argument in passing. That drive-by analysis will leave the reader uncertain, and would make my analysis incomplete.”

    This is an interesting argument… you left parts out of the analysis to make the analysis more complete.

  21. Obviously he committed a crime — violating the Impoundment Act. Democrats can’t be blamed for the GAO taking its own sweet time to declare so.

    1. Fascinating! You should contact Schiff and Nadler immediately, and offer your advice, and tell them they should have charged him with that, instead of the nebulous “abuse of power.”

      Per Prof. Blackman:

      “If the President violated the Impoundment Control Act, we would not need to consider the nebulous charge of “abuse of power.” Running afoul of a statute could itself be a ground for impeachment.”

      1. Bigoted dullards who offer legal insights are among my favorite culture war casualties.

        1. You have heard about people who live in glass houses right?

  22. [8] Your opinion is [-redacted-] and just you wait till the election!

    Everyone knows that it’s a clown show up there, they just disagree on who are the clowns.

  23. This really isn’t an FAQ (frequently asked QUESTIONS) more so then just being a list of responses to rebut frequent criticism that your article had on the internet.

    Either way, I wouldn’t be concerned with what any mentally retarded person on the left says. They are all just idiots who parrot whatever the media tells them to say about something. Will claim they are “woke” but all that means is indoctrinated. There is no reason to engage these idiots in a discussion based upon facts, logic, or reason. The left has no concept of these things.

    Same for twatter. Just ignore it. The place is a trash dump for SJW garbage after implementing its Chinese style censorship regimen. Delete your account and spend your newfound free time taking a hike through nature.

Please to post comments

Today in Supreme Court History

Today in Supreme Court History: January 24, 1968

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1/24/1968: United States v. O'Brien argued.

 

A few thoughts on publishing an Op-Ed in the New York Times

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Last Friday, an editor from the New York Times asked if I would be willing to write an op-ed in support of the President's defense. I agreed. I had been planning to write something, and was glad to have the large forum. I did so with full knowledge that the criticism–on the right and left–would be significant.

The article was published in the early morning. About twelve hours later, the Times website is up to nearly 3,000 comments and counting. It was the lead piece on the opinion page for most of the day. I received about three-dozen "fan" emails. A few of them used racial epithets. (People made an incorrect assumption about my race based on my last name.) No anti-semitic email yet, but I've received those in the past. The negative emails far outweigh the positive emails. I suspect my Dean has also received some messages. I had given him a heads up. (One person wrote that he would contact my "supervisor!").

I received a handful of voicemails at my office, one of which said "I should be ashamed of myself." The person didn't leave a name. I did not check my Twitter mentions today, quite deliberately. Friends have told me they're pretty bad. Plenty of academic subtweeting. Indeed, at least one blog post criticized me, but did not name me–"some have argued." There maybe others, but they are hard to find.

I am grateful to my co-bloggers Jon Adler and Ilya Somin for offering substantive responses to my post. They model the best of what academic discourse has to offer. I will respond to them in due course.

 

 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Bummer. But I’m not sure why anybody would expect anything different from NYT readers, Academics, or Twitter.

    1. You’re right. Some people should probably just stick to Breitbart, FreeRepublic, Fox, the Volokh Conspiracy, RedState, Limbaugh, Stormfront, and Instapundit.

      1. And perhaps you should stick to the Washington Post and New York Times, where your compatriots blovate.

        1. What’s your next swipe at your betters?

          ‘Mainstream suckers are stuck with Harvard, Berkeley, and Columbia, while us real Americans get Liberty, Bob Jones, Grove City, and Wheaton!’

          ‘The elites can have their BMW or Mercedes or Porsche — but real Americans know there’s nothing better in life than using a couple of do-it-yourself oil change kits on a 17-year-old Chevy pickup!’

          ‘Keep going to those fancy sit-down restaurants, Kuckland — guys like you will never get to know the heartland joy of washing down a jumbo Slim Jim and a thrift store Twinkie with an off-brand energy drink. And that’s before the wad of sweet, sweet snuff . . .’

  2. I’m just disturbed to know it will be perfectly fine with you when President EvilDem holds Irsael’s funding up until Bibi makes up, I dunno, child molestation charges against Don Jr.

    1. Has there even been an allegation that Trump requested Zelensky to “make up” charges against Hunter Biden? Or are you the one making things up?

      1. Yes the charges would have to be made up.

        1. I saw that Trump desired for Zelensky to make a public announcement concerning the investigation, which could presumably be understood as a way to ensure the Ukrainians followed through on what they were being asked to do. I have not seen any reference to Trump asking Zelensky to “make up” charges against Hunter Biden.

          1. Kleppe, have you been watching the live impeachment coverage? The evidence that Trump demanded (not asked for) an investigation announcement is already overwhelming. It would become stronger yet if the Senate were to decide to hold a trial of the evidence, and subpoena the documents Trump has refused to supply. Nobody defending Trump should do so without demanding an actual trial in the Senate, as the Constitution requires.

            1. Stephen, Kleppe already addressed that. Asking for an announcement is a commitment mechanism: Once somebody publicly announces they’re going to do something, it becomes more difficult for them to back down from doing it.

              You have no evidence that he specifically wanted an announcement and no investigation. If he had at any point specifically said, “I want you to announce the investigation, and then not do it., that would be fairly damning, but you’re only fantasizing that you have proof of THAT.

            2. Lathrop, I have watched the hearings (about 18 hours thusfar) because this is a major event in our history. My observations.

              The presentation is well-rehearsed, and effectively uses multi-media.
              The arguments tend toward the tedious (agonizingly detailed).
              The arguments are repetitive. I feel like I have heard the same thing 36 times now. The first 35 were enough.

              I really don’t think it is a good idea to antagonize the Senators who will render judgment. I don’t. And the House Managers are doing precisely that, with a lot of snide comments. But it is their case to present, in their way. They will have to answer for their strategy when this is all over.

              We are witnessing the actual trial in the Senate. The Senate will vote on calling witnesses after the House presents their case, and the POTUS’ team presents their rebuttal. Let the process play out.

              1. Lathrop has pre-judged the case, even as he admonished others not to do so. Hypocritical imbecile with no self awareness. Ignore the troll.

                1. BigT….Truth be told, I am pretty sure that 99% of us have prejudged the case. That prejudging was also the case in 1868; perhaps not so much in 1998.

                  Our elected leaders cannot resolve their political issues. Therefore, We The People will solve the problem at the ballot box in November 2020.

                  1. Of course we’ve pre-judged it; They’ve been publicly pre-trying him for months. In most media outlets, pre-convicting him, too.

                    I think if the Senate decides to have witnesses, instead of just a brief presentation of arguments then an up/down vote, a lot of people are going to be shocked when they see BOTH sides of the case.

                    The House’s evidentiary record was carefully curated, blocking witnesses and even lines of questioning that weren’t favorable to their accusations. And, while they tried for a Senate resolution authorizing prosecution witnesses, but no defense witnesses, it got shot down.

                    If it comes to witnesses, it won’t go well for the Democrats. That’s my prediction.

                    1. Let the cards fall where that may. But for this to be a meaningful process, those cards must be dealt.

                    2. I think calling witnesses is a spectacularly BAD idea, Brett. Mostly because I think it would have the effect of dividing our Republic even further. But I also know that if you don’t absolutely know the questions (and their answers) in advance, then you best not call the witness.

                      We need to get this trial done, and over with. The trial will not settle the issues that we have, presently. Only the ballot box will.

                2. BigT, there has been a lot of rehearsal in public on this one. I could be astonished, and see Republican senators (somehow) refute the factual presentation the impeachment managers presented. But how could it happen? Almost none of the evidence can even be in dispute.

                  Despite repeated claims to the contrary, the evidence is almost entirely first-hand testimony (and documents) from qualified witnesses, who did their testimony on television. What’s to refute? They said what they said. They showed the documents they showed. Taken together, those make the case. The “taken together” part is the part too many Trump defenders ignore.

                  You may number yourself among the Trump supporters who suppose the case against Trump can somehow be overturned by irrelevancies, such as proving the alleged corruption of the Bidens (a subject upon which my view does not depend, one way or the other). I cannot say whether that distraction can carry the day politically (nor does it look like any factual predicate at all is necessary to carry the day politically), but whether it does or not, it will not overturn the case for convicting on high crimes and misdemeanors. Whatever happens in the senate, history will almost certainly convict Trump, and all the Republican senators who voted (and will vote again, I predict) to prevent an actual trial.

                  But suppose, somehow, the managers’ case is attacked, and does fall apart. To make that happen, you would have to somehow effectively refute that mountain of evidence. It seems impossible to imagine, let alone accomplish. But if it happens, I will take off my hat, and congratulate whoever does it for a case well made against seemingly hopeless odds.

      2. Yes. That was the point.

      3. There certainly have been allegations of that nature, though not a scrap of evidence.

  3. There is no point in paying any attention to the frogs on twatter.

  4. Thankfully, no death threats. There are way, way too many of those in American political discourse. And law enforcement does not do nearly enough to track them down and throw people in prison who make them.

    1. If the police spent their time tracking down everyone who made death threats, they’d have no time to do anything else, and they’d still barely make a dent. The vast majority of them are just morons blowing off steam, and are rarely actionable anyway, lacking the elements to satisfy the “true threat” standard.

      1. The sorts of death threats I am talking about definitely meet the true threat standard.

        And piercing Internet anonymity a few times would have a huge deterrent effect.

        1. If we’re going to pierce internet anonymity, I’d rather we start dropping SEAL teams on the clowns who make fake “virus alerts” show up on your computer, and try to trick you into clicking on them and installing their ransomware. They’re causing a lot more damage than anonymous idiots making empty death threats.

  5. I am a little surprised that you offered to write an article for the NY Times given the environment (or agreed to their offer to write one). I understand the reasons, broadening the audience, increasing the diversity of viewpoints available, and so on. But, I’ve followed some other moderate libertarians around over the years, in their transitions between different publications, including flipping through the comments and such, and as of late, going to a large liberal paper has…significant downsides.

    What immediately comes to mind is Megan McArdle’s transition to the Washington Post, and frankly, the comments area became far, far more negative than in her previous publication. And it gets to you. And it’s not needed. And a critical mass of Reverend Kirklands drives away normal commenters and normal thinkers, reinforcing a spiral that encourages more vitrol.

    I frankly don’t know what to do about it. Perhaps more rigorous decorum needs to be enforced. But it’s an issue. Perhaps it started with Jon Stewart a while ago. But that’s neither here nor there.

    Here’s what I will say. I applaud your dedication. However, it’s not, in my opinion, worth going back to the Times. The negativity isn’t worth the benefit.

    1. Stick to the right-wing sites, perhaps those with an increasingly purified standard for acceptable conservative thought. You’ll experience less heartburn if you avoid the mainstream.

      It’s not going to matter much. The better ideas are going to continue to win.

      Oh, and Artie Ray Lee Wayne Jim-Bob Kirkland endorses your position on decorum and comments. A site that doesn’t engage in partisan, viewpoint-controlled censorship isn’t really trying.

      1. You ever realize that you increasingly use the language and tactics of the so- called “clingers” and “racists” that you claim to dislike?

        Eh, never mind. Probably not.

        Civility and open, polite, and respectful discourse is key to a functioning society. Attacks by ad hominem and insult to shout out uncomfortable ideas are counter-productive in the long run

        1. Self awareness is in short supply among the left.

    2. I think that the point of persuasive writing is precisely to address an audience that has different opinions, and change their mind. People generally do not want to get out of their comfort zone, and react negatively. I think people have always been this way, its just that now you know with the comments. The comments section makes it free and anonymous for people to share their unfiltered thoughts which they would previously hold back. Twitter has become a liberal bubble I do not find it useful either. No ones mind can be changed in 144 anonymous characters.

      Lots of vitriolic comments simply means you have struck a nerve.

      Is it worth the benefit? Well, they read it! That’s a start. For every person who made a vitriolic comment there are many others who at least paused and considered the argument. Repeat this enough times, people get desensitized to the discomfort and then critical thinking can begin.

      1. You make good points, and I don’t disagree with them. I agree with them quite a bit, in fact. It’s the other side which I consider.

        You know, if this was in public, you might see one or two random hecklers, and a bunch of people listening, and perhaps even some nodding. But, over the internet, the people listening “disappear” as do the nodders. All you see are the hecklers. And all the hecklers see is other hecklers, and it encourages them. And sometimes it’s hard to tell. Are you speaking/writing to a room with 1-2 hecklers, and the rest being an attentive audience? Or are you speaking to a room of hecklers throwing tomatoes?

        And then you get into the threats and the letters, and the doxxing, and….sometimes you wonder, if it’s just a bunch of hecklers, is it worth it? Really? Is it worth perhaps you job, perhaps your family? That’s all.

        1. If the goal of hecklers is to shame you into silence, its like First Amendment terrorism, you simply cant let them win. You have to take the fight to them.

    3. “The negativity isn’t worth the benefit.”

      You are kidding, right?

      People write op eds for the NYT because of their egos. The negativity is a big part of the benefit, it feeds the ego.

  6. Josh – we don’t agree on much, politically. But I enjoyed both your op-ed and the responses of your colleagues. Keep doing what you do.

  7. I’m still waiting for the Times to apologize for Walter Durant and the pro Stalin propaganda they pushed and also for the worst form of smearing of Italian Americans after the worst lynching in American History (New Orleans to Italian Americans). The Times is a sh$$y bolshevik rag..always has been..real Americans they sure are not

    1. Well, I’m still waiting for the Italians to apologize for the destruction of Carthage.

      1. David,
        Heh. Best comment of the day.

      2. I’m waiting for Theia to apologize for leaving Gaia like a Courtney Love hotel room.

  8. Josh, I’m curious what conclusions you draw about your experience given the description you provide? Obviously, getting offensive emails or voicemails is not a pleasant experience. However, the NY Times has something like 5 million subscribers; even assuming all 3,000 comments were negative, that means fewer than 0.06% of people exposed to your op-ed acted negatively, let alone poorly. That’s a rounding error, so I’d be really hesitant to draw conclusions about “The New York Times” or its readership from that experience as TwelveInchPianist does above.

    In hindsight, do you think your decision to write the op-ed was a bad idea? A good one with some unfortunate side effects?

    1. That circulation number you cite sounds a bit high. I just checked, and it’s an order of magnitude too high. NYT circulation is less than half a million.

      1. Typical, I think you’ll find that number is print only. In their most recent 8-K filing they claim they hit 3.4 million total “core news subscriptions” in 2019. Jeff’s 5 million total figure is higher because it includes non-news offerings, e.g. 600,000 Crossword subscriptions.

        1. Yes, I was adding reported print and digital subscriptions from November 2019 (the most recent I could find casually). I will happily concede the 600k crossword subscriptions, but I don’t think it materially impacts my point: this post and its title suggest to me that Josh’s main takeaway from publishing in the Times is that people had an overwhelmingly negative reaction to his op-ed because of his choice of venue. I don’t think that’s supported at all by the evidence, and I worry that trying to draw conclusions based on an insignificant fraction of the readership makes people susceptible to confirmation bias. There are probably a few dozen nuts out there who would write death threats if the op-ed were about his choice of breakfast cereal; you just have to write them off as unrepresentative of the majority.

  9. I read the oped on NYT. I was surprised that such simplistic and blinkered arguments would pass muster in a college law class. The oped ignored much of Trump’s corrupt behavior in disputing the first count, and never even mentioned the second count. I came away thinking that studying law must be much less rigorous, and much more malleable than I had imagined.

    1. I could hardly disagree more with the op-ed, yet I have to say that had you bothered to read the OP you’d know why the second count wasn’t mentioned.

  10. my co-bloggers Jon Adler and Ilya Somin

    We’ll just judge you by the company you keep: bigots with TDS.

    1. So your objection is that Josh is insufficiently pro-Trump? Ok lol.

  11. “one of which said I should be ashamed of myself.”

    That could have been Trump.

  12. Professor Blackman, I submitted a negative comment to the NYT, a polite one. My advice now? Stop whining in public, and get better grounded in the subject you wrote about.

    This is not in the slightest a dispute over constitutional law. It is about facts, which the House managers have now proved beyond doubt. If you disagree, then the most charitable supposition available is that you have not been following the impeachment proceedings live, but instead got your view of the facts elsewhere. Go back and review the House and Senate proceedings as they unfolded.

    And while you are at it, please join the demands for an actual trial in the Senate. Without documents and witnesses you have a sham, not a trial. A constitutional law professor probably knows that. Why not say so?

    1. Without documents and witnesses you have a sham,

      Sort of like the House indictment which lacked both, right? And yet in the same comment you assert the facts are proven. Could you be less self aware?

    2. “proved beyond doubt” !!!

      oh my…

      Nothing is “beyond doubt.” Only priests are so certain. You have merely replaced religion with ideology. You are practicing faith based law and politics, the house managers are your priests.

      1. dwb68, nah. Until I saw what they did in the last 3 days, I have been mostly criticizing all the Democrats for incompetence. And even though the evidence presentation has been not only impressive, but probably irrefutable, I still think making the presentation was the wrong way to go politically.

        The best point the Democrats had going was that the American people understand that without documents and witnesses, it is not a trial. After the Democrats’ amendments were all defeated, they should have left it at that. Just announced that the Republicans had ruled out the trial required by the Constitution, so the Democrats would absent themselves until a real trial was agreed to, if ever.

        Let the Republicans degrade the process from a sham to a farce, all in their own name. Let the Chief Justice preside over that, if he can bear it. Let history sort through the evidence, and pronounce the verdict. If it is a foregone conclusion you will lose now, then do the best you can to win later.

        That is my view. And ideology has nothing to do with it. I was just surprised to see how well the House managers did with their thankless task.

        1. The best point the Democrats had going was that the American people understand that without documents and witnesses, it is not a trial. After the Democrats’ amendments were all defeated, they should have left it at that. Just announced that the Republicans had ruled out the trial required by the Constitution, so the Democrats would absent themselves until a real trial was agreed to, if ever.

          But the Senate didn’t formally rule out witnesses at that time. They decided that they would defer on witnesses until after the other evidence was presented.

  13. I’d say the negative comments (less any threats) are well deserved with comments like:

    “…the House of Representatives has transformed presidential impeachment from a constitutional parachute — an emergency measure to save the Republic in free-fall — into a parliamentary vote of ‘no confidence.'”

    Really?!? We have to reach Civil War proportions to start an impeachment?!?

    I like how you simply omitted the OMB funding issue (you know THE thing that is the REAL issue).

    And I don’t see how your little story about Johnson/Marshall translates into a “personal” political benefit for Johnson.

    All-in-all, it’s a weak article with zero legal/academic input and is well deserving of negative comments.

    1. IIUC you believe the Congress controlled GAO opinion over the President controlled OMB and the law itself?

  14. Good lord this is petty.

    1. Yup.

      Negative comments. Horrifying!

      Read the comments section here, Josh.

      Read the reactions to David Post, or any other post critical of Trump.

      And to those trying to single out the NYT and WaPo as particularly bad, forget it. Comments sections are like that. Read the comments on other articles at Reason. Not a lot of intelligence on display.

      1. “Read the reactions to David Post, or any other post critical of Trump. ”

        Yes, yes, negativity is only expressed against Trump critical posts.

        Responses to pro-Trump posts are always Platonic level.

      2. Prof. Blackman loves the comment section here. These are his peeps.

        After years with all of those “elites” and lefties at law school, the Volokh Conspiracy is heaven for him.

  15. Amusing news about the NYT. Apparently they had an expose available last May of Hunter’s Burisma dealings, all ready to go, and spiked it when Biden announced. Including State Department emails discussing how it was a severe ethics problem that was complicating their anti-corruption efforts in Ukraine.

    And the “whistleblower” was involved in the meeting.

    1. A few notations of interest –

      separate from WB allegations, Ciaramella is person of interest through his hosting of Jan 19 meeting with Ukrainian prosecutors at which linkage of IMF $1 billion to Shokin firing was revealed and which connected to Sytnyk’s release of Manafort Black Ledger.

      His named activities give reason to subpoena him. While WB law limits ability of IC to identify him, WB law doesn’t appear to prohibit a congressional committee from asking Ciaramella about WB/leaking activities. If Ciaramella’s “WB” activities were non-criminal, no basis for 5th

      https://twitter.com/ClimateAudit/status/1220593860654571520

      Seems the impeachment process is more about stopping any investigation of joe & Hunter Biden’s corruption and the deep state’s support / involvement in the corruption

      1. Exactly. Once again the Progressive Democrats are projecting their own actions onto others!

        1. The birthers are hot on the trail of another one . . . Go get ’em, clingers!

          The Volokh Conspiracy will be here to help, so long as it wouldn’t interfere with any judicial nominations or faculty applications.

  16. It’s hard to engage in reasonable discourse these days because people will just come out and start insulting you instead of responding to your points. I appreciate the people willing to put themselves out and still be reasonable. Maybe it will eventually bear fruit.

Please to post comments

Impeachment

Does an Impeachment Overturn an Election?

|

When the White House released its formal response to the House impeachment, it repeated a frequent claim of the president's defenders: "This is a brazen and unlawful attempt to overturn the results of the 2016 election." The president himself had set the tone some time ago by tweeting, "what is taking place is not an impeachment, it is a COUP."

This is not an unusual move for defenders of an embattled president. Nancy Pelosi was among a group of Democratic politicians who once claimed that the impeachment of President Bill Clinton was "tantamount to overturning the will of the American people." Back then, it was Jerrold Nadler who declared that the House majority was "participating in a thinly veiled coup d'etat."

I have a forthcoming article that tries to take these sorts of arguments seriously and determine how much credence we should give them. There is obviously a lot of meaningless bluster in this kind of rhetoric, but presidential defenders are pointing to a real issue. In a political culture that emphasizes the importance of partisan political elections, removing a president by congressional action is not the same as removing a district court judge. Advocates of presidential impeachment and removal bear a very high argumentative burden to justify such an extraordinary act, not just because the presidency is an important office but because the president was elected by the people and will eventually be held accountable by the people for his actions.

Nonetheless, all the talk of overturning elections and coups is over the top. Read More

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “If Obama had committed grave offenses while in office that would have merited his impeachment and removal by a Republican-controlled Congress”

    If. LOL!

    1. These True Believers genuinely believe Obama’s was a scandal-free administration.

      They’ve buried the weaponized IRS targeting political enemies, they’ve long forgotten the civil servants killing vets for bonuses, they don’t even count Obama spying on Trump’s presidential campaign.

      These people are sick in the head and very very dangerous to our way of life.

      1. Imagine if Obama’s VP withheld aid to Ukraine for an explicit quid pro quo and then bragged about it later.

        1. You have to fantasize, because Obama’s VP was following US policy backed by the Western Alliance and the International Monetary fund. Joe Biden did not gain any personal political benefit like Trump attempted.

          1. “Joe Biden did not gain any personal political benefit like Trump attempted.”

            Right. His son did.

            1. We don’t actually know that, because Hunter is refusing court orders to reveal his financial affairs. It’s still possible he passed some money back to daddy in appreciation for Joe having his back.

          2. Well, that proves it was on the up and up, it’s not like IMF heads keep getting caught committing crimes or something.

            1. You think this was a conspiracy that included Biden, Obama, and the IMF, Brett?

              Look where your shoddy reasoning has taken you.

          3. No, exactly what I said is exactly what literally happened. An explicit quid pro quo.

            I never said that Joe Biden gained a personal political benefit. That is a question that should be investigated. Nobody has investigated it. The media won’t even investigate it. You are a liar when you say, “Joe Biden did not gain any personal political benefit,” because you don’t know that, you’re just being a partisan tool.

            However, in the video, where Joe describes this explicit quid pro quo, he is describing an example of a political achievement that demonstrates his acumen and competence for which he should be rewarded with further power.

        2. Joe Biden and Nance PELOSI both had kids on board of directors of Ukrainian gas companies. NANCE’s son Paul PELOSI was on VISCOIL board and NANCE even made a video for that company.

          1. Sorry, but no. Nancy (not “Nance”) Pelosi’s son Paul did indeed serve on the board of Viscoil for a time. Viscoil, however, was not a “Ukrainian gas company.”

      2. if it was such an easy case why didn’t the Republican-controlled Congress actually do it? were they secretly Democrats the whole time?

        1. Perhaps they had better manners and didn’t wish to escalate the partisanship. Seems to me the Democrats have been the ones escalating partisanship. Remember the filibuster’s nuclear option?

          Republicans aren’t pure of heart either; their impeachment was just as partisan, but did involve perjury. and wasn’t rushed through like this disaster.

          1. It seems to you that way so you can keep the moral high ground. That’s not actually accurate though. I mean look at how Republican led state legislators have reacted when a democratic governor gained control of the executive. They went absolutely bananas.

            1. Sure, in spite of [citation needed]. Both sides are hacks. But the recent federal stuff is Democrats. One need only look at the current crop of socialists to see how fanatic they are about getting their way, by hook or by crook.

              1. There is no “current crop of socialists”. One only need to look at the history of the Republicans. They serve almost exclusively at the pleasure of the wealthy and the fascist corporate interests. There is no real equity between the Democrats and the Republicans. The Republicans have not passed one significant policy specifically directed to support the lower and middle-classes for four decades. The same cannot be said of Democrats.

                1. This guy’s going to be here all week:

                  “There is no “current crop of socialists”.”
                  ——————————-
                  “One only need to look at the history of the Republicans. They serve almost exclusively at the pleasure of the wealthy and the fascist corporate interests.”

                  He’s also full of shit.

                  1. As are you.
                    (See? See how helpful constructive “you’re full of shit” observations are?)

                    1. C’mon santamonica811,
                      Even you know that Reed is full of #BullSchiff when making the claim that there is no “current crop of socialists”. Let alone claiming that only Republicans “serve almost exclusively at the pleasure of the wealthy and the fascist corporate interests.”

                      Hell, the Progressive Democratic Party has TWO Billionaires running for President, not to mention the heavy support/influence of wealthy and corporate interests. Can one say GE, Google, et.al.

                    2. It’s the globalist socialists vs. the half-educated bigots.

                      Where is the hope for America?

          2. Harry Reid had made an agreement with Moscow Mitch to not filibuster low judge department appointments. McConnell lied. Late McConnell went further and used the “nuclear option” on SCOTUS appointments like no time in history.
            The Clinton impeachment had a special prosecutor who deposed witnesses, like the neighbor’s maid, her cousins and their dog. Over 90,000 pages of material evidence and witness testimony was turned over to the Congressional inquiry.
            Without the same documentation and witness testimony, the Democrats had no choice. Trump’s impeachment defense team have committed perjury in the Senate Trial and in front of Chef Justice Roberts.
            Trump has refused to show up at the Inquiry (Clinton did), Trump has refused to turn over ANY requested documented evidence and Trump has obstructed his staff’s first person testimony.

            1. IOW the Democrats didn’t get what they expected from Mueller’s Russian Collusion Delusion (unlike the Starr investigation) so they had to make shit up, run secret hearings (so secret some of them only had Dems in the hearing,) then rush through an impeachment in the hopes that this shit would stick.

              1. Get back to us when you’re willing to post truthful statements.

                Actually no, just leave.

        2. “why didn’t the Republican-controlled Congress actually do it?”

          Maybe they learned a lesson from the Clinton impeachment.

          They did not control the Senate until 2015

          Even after 2015, a small senate majority can’t convict and you aren’t getting a single Democrat.

          1. The had the House from 2011 to 2016. This Democratic House does not control the Senate..
            Currently a small Senate minority is being tyrannized by the Republican majority.

          2. Why didn’t the Republican-controlled Congress even investigate the situation? They had roughly 613 investigations into Benghazi, each one more pointless than the last. And yet they never once considered investigating Biden.

            1. I wouldn’t go so far as to say that everybody in Washington is dirty, but it’s at least a controlling plurality.

              They’ve got a gentleman’s agreement not to investigate each other’s graft. Only the really clumsy (Like that freezer cash guy.) get prosecuted, because they might expose the rest.

              1. You see how weak and special pleading this is?

            2. Then again, Biden didn’t openly bragged about his quid pro quo / extortion of Ukraine until 2017 after he left office.

              1. The Republicans supported the very reforms Biden was demanding. That’s why they didn’t investigate; they wanted the prosecutor general’s office cleaned out.

      3. I mean they’re at least as sick as the people who support a guy who in no particular order:

        1. Pardons convicted or credibly accused war criminals.
        2. Has stated his intention or desire to commit other war crimes, including but not limited to: bringing back torture, seizing a country’s natural resources, “going after” (ie killing) the families of suspected terrorists, and targeting cultural sites with a symbolic number rather than focusing on legitimate military targets.
        3. Pardoning people who merely wrote and said nice things about him.
        4. Pardoning an official whose crime was contempt of court for continually engaging in racial profiling.
        5. Cheating on all his wives.
        6. Calling the judge overseeing his trial for civil fraud biased because he’s Mexican (the judge was born in Indiana FWIW) .
        7. Thinking he knows more about the impact of hurricanes in Alabama than meteorologists in Alabama, and then forcing a government agency to lie on his behalf to defend that belief.
        8. Openly criticized his Justice Department for indicting Republican representatives and implying that there should be political considerations behind those decisions. Those Representatives both pleaded guilty FWIW.
        9. Not being overly concerned with consent before physical or sexual contact.
        10. Encouraging police officers to rough up suspects even though that is illegal.
        11. Consistently lying about his approach to health care policy.
        12. Consistently embracing and praising a murderous dictator in North Korea. (Who also happens to be communist.) Such praise has not resulted in any meaningful change in North Korean policy.
        13. Thinking modern light bulbs cause his orange glow.
        14. Consistently attacking others for their physical appearance
        15. Making fun of a reporter’s disability.
        16. Lying about his inauguration crowd size and forcing other people to lie for him.
        17. Praising a congressperson for assaulting a journalist.
        18. Going to a hospital to visit shooting victims and smiling with a thumbs up.
        19. Making religiously based attacks against a Gold Star family
        20. Well documented evidence of mismanaging a charity and using it as a slush fund. Said mismanagement led to its dissolution and a $2 million fine.
        21. Ignoring Congressional subpoenas and directing other to ignore them.
        22. Not knowing who Frederick Douglas is
        23. Self admittedly not being a big reader
        24. Not taking intelligence briefings because he’s “smart”
        25. Equivocation on Charlottesville
        26. Not knowing how to spell simple words
        27. Encouraging the break-up of institutions in Europe that have kept the peace for 70 years with no discernible benefit to us.
        28. Thinking American Jews have dual loyalty to Israel (ie “Your Prime Minister”)
        29. Believing the Crowdstrike conspiracy theory
        30. Retweeting white nationalists
        31. Saying he won in a landslide even though he 1 lost the popular vote and 2 is in the bottom quarter of electoral college margins
        32. Birtherism
        33. Trying to rename Denali Mt McKinley
        34. Thinking jobs numbers were rigged until the moment they showed he also had job growth
        35. Credible evidence of tax fraud
        36. Showing zero loyalty to anyone but himself
        37. Attacking Ted Cruz’s wife as unattractive
        38. Saying Ted Cruz’s dad was involved in the JFK assassination.
        39. Believing that SNL making fun of him is “illegal” and should “be tested in court.”
        40. Imitating an orgasm at a rally
        41. Taking credit for a veterans bill passed in the Obama admin.
        42. Hiring an HHS Secretary, EPA admin, and Interior secretary who had to resign under the cloud of scandal
        43. Claiming that men taking care of their kids is “acting like the wife”
        44. Saying a wide variety of creepy comments about his eldest daughter
        45. Not knowing where things in the world are.
        46. Believing companies should be able to bribe foreign leaders and that the FCPA is a bad law.
        47. Thinking windmills cause cancer
        48. Saying that STDs were his personal Vietnam.
        49. Making fun of someone for being a POW.
        50. Saying how gross and how much he dislikes parts of the country he leads. (Seriously. Imagine Obama saying how much he thought Arkansas sucked.)
        51. And of course, constantly telling people how great and smart he is despite loads of evidence to the contrary.

        Etc. etc.

        1. The repeatedly debunked lie in #25 discredits the rest.

          Good one.

          P.S. “Bitter Clingers”.

          1. Bull sht. Trump did equivocate. There is no legitimate equity between nazis and the protestors. Trump’s equivocation was lame.
            Your dishonest, infantile, arbitrary dismissal, is ridiculous, lazy, and destroys your credibility. Fraud…

            1. Moreover, while there were some words of criticism of Nazis, they were perfunctory. Contrast how repeatedly and vehemently Trump denounced Comey and Mueller and Schiff and Hillary and the like with how rare and low key his criticism of Nazis was.

              “Oh, yeah, Nazis are bad. Now that I’ve gotten that out of the way, let me rant tweet 50 times a day about how evil Jim Comey is.”

              1. “Moreover, while there were some words of criticism of Nazis, they were perfunctory. Contrast how repeatedly and vehemently Trump denounced Comey and Mueller and Schiff and Hillary and the like with how rare and low key his criticism of Nazis was.”

                Oh, oh! See? He didn’t denounce someone the way David likes, obviously an impeachable offense!
                You TDS victims are all too obvious.

              2. Let’s be real here. No one over the age of 5 needs to be informed in any great detail that self-proclaimed Nazis are bad. If you have genuine Nazis running around, there’s really nothing else to say.

                The comment everyone is referring to at Charlotesville was clearly Trump not doing his homework. It was a non-answer that in most situations would be the safe one (after all, most rallies do have decent people on both sides that just disagree).

                1. Republicans are fine with bigots. Gay-bashers, Confederate flag-fondlers, racist vote suppressors, misogynists, Muslim-haters — they’re pillars of the current conservative electoral coalition. They just can’t afford bigots who strut around full Nazi, because the liberals made it so you must try to keep the bigotry on the down-low these days.

          2. Defending the confederate statues isn’t really a good people thing anyway, but okay.

            Also he didn’t say he hated them or they were disgusting like Trump does when he talks about liberal cities or states. He said people were “Bitterly clinging to guns and religion” It was more of an expression of disappointment in their reaction to hopelessness. In some sense it was empathetic. Trump, who is incapable of such an emotion, as he has repeatedly demonstrated, simply trash talks. Another character flaw.

            And even assuming that 25 is discredited, I assume you don’t have a good response to the rest of them which is why you simply picked on that. Maybe you’re not so comfortable supporting idiocy and immorality as I think.

            1. “…Another character flaw…”

              So we’ll include that in the entire run of 1 to 51, easily parsed as:
              ‘I AND THE HAG LOST TO TRUMP AND I DON’T LIKE HIM!!!!’
              Thanks, and fuck off.

            2. “ Defending the confederate statues isn’t really a good people thing anyway, but okay.”

              “Those who cannot remember the past are condemned to repeat it”

              Santayana has the better if the argument to my mind. We should keep those up to remember there was a day when their actions were celebrated.

              It’s the same reason Auschwitz-Birkenau is a World Heritage site; so we don’t forget how humans can become evil.

              1. See, there’s your problem right there: Humans start out evil, the danger is forgetting that, and forgetting the necessity to train them out of it.

                1. Devaluing evil to own the libs.

              2. Except that’s the not the purpose of confederate monuments. They were erected after “Redemption” and throughout the twentieth century to celebrate. They are a central piece of the “Lost Cause” mythology. Places that should be seen more akin to Auschwitz, plantations, are also sanitized and even used as wedding venues.

                These aren’t historical reminders of the horrors of slavery. They’re a celebration and of myth. If they have value for historical memory they can go in a museum or somehow be similarly contextualized. That’s not what the Charlottesville protesters were looking for, though.

                I suggest you read Fitzhugh Brundage’s The Southern Past for a good overview of the efforts of white southerners to make public memory about the confederacy about something other than the defense of slavery.

                1. Law, I tend to shy away from second-guessing motives. To me, only God truly knows one’s motivations in their heart and mind. But let me wade in and address the statue issue.

                  I feel we should leave the confederate statues alone. I completely understand and empathize why others feel differently (and strongly) about this issue, and it is not a case where I think they are wrong. I don’t think they are wrong. So why do I feel this way? Why do I want to leave the statues alone?

                  To me, these statues are a highly visible reminder of the fact that we lost ~644,000 thousand men in a ghastly civil war. A civil war, in great measure, that was fought to successfully eradicate slavery from our country. This civil war happened. Men fought; men died. It is a part of our history, our cultural DNA. And there is no escaping that. Their ultimate sacrifices – on both sides – should be honored. And not treated as a thing of shame. And lest anyone forget, there was a victor in the civil war, and it wasn’t the confederacy (no need to rub that in, trust me, they know it).

                  I want our descendants, centuries from now, to know and understand our history. That means all of our history, with all of our terrible mistakes. We do a grave disservice to our descendants trying to sanitize our American story by removing physical reminders of it (like statues). Our descendants must understand the depths of depravity that men are capable of doing to men, so they can learn from that and not repeat it.

                  I feel a potential compromise to explore is relocating statues to a local museum in the area, and having a plaque (as a historical marker) in place of the statue. I’m not especially wild about that, but I’d certainly be open to exploring the idea.

                  1. “I feel we should leave the confederate statues alone.”

                    That suits your political leaning. It also marks a bigot. An embracer of bigots or an appeaser of a bigots, but a bigot either way.

                    Desire statues that evoke the Civil War? Choose statues that celebrate the winners who beat the bigots. Erect markers that describe the Confederacy’s ugliness. Not a gallant bigot on a fine steed.

                    Or, stick with the bigotry. Or, the euphemism cowardly conservatives like to hide their bigotry behind these days, “traditional values.”

                    1. I want our descendants, centuries from now, to know and understand our history. That means all of our history, with all of our terrible mistakes. We do a grave disservice to our descendants trying to sanitize our American story by removing physical reminders of it (like statues). Our descendants must understand the depths of depravity that men are capable of doing to men, so they can learn from that and not repeat it.

                      Yes, what a bigot I am.

                  2. Their ultimate sacrifices – on both sides – should be honored.

                    Why would you advocate honoring someone who sacrificed for a bad cause? Mohammad Atta paid the ultimate sacrifice, too, but I don’t see anyone arguing for his statue at Ground Zero.

                    And the statue in question, like most of the controversial civil war monuments, does not simply memorialize the dead; it honors one of the people responsible for the deaths.

                    1. To me, these statues are a highly visible reminder of the fact that we lost ~644,000 thousand men in a ghastly civil war. A civil war, in great measure, that was fought to successfully eradicate slavery from our country. This civil war happened. Men fought; men died. It is a part of our history, our cultural DNA. And there is no escaping that. Their ultimate sacrifices – on both sides – should be honored. And not treated as a thing of shame. And lest anyone forget, there was a victor in the civil war, and it wasn’t the confederacy (no need to rub that in, trust me, they know it).

                      I want our descendants, centuries from now, to know and understand our history. That means all of our history, with all of our terrible mistakes. We do a grave disservice to our descendants trying to sanitize our American story by removing physical reminders of it (like statues). Our descendants must understand the depths of depravity that men are capable of doing to men, so they can learn from that and not repeat it.

          3. Gotta love a LT Guy that supports/protects Antifa, criminal foreign nationals, and terrorists over US citizens, veterans, and legal foreign nationals.

            1. How could you possibly infer that from what I said. I haven’t made fun of veterans but I noted that Trump made fun of someone for being a POW. If you mean the pardons, then you probably have a beef with other veterans and active duty military personnel who are not pleased by them Where did I even mention Antifa? And, in case you weren’t aware: there are certain legal protections for “criminal foreign nationals” and “terrorists.” That’s the law. Sorry if you don’t like the concept of rights, as Trump clearly does not, but the law does not permit us to summarily torture and execute suspected illegal aliens or terrorists.

      4. The comparison is useful. How did the President respond when the “IRS targeting political enemies” (which apparently included the IRS tagging entities like “progressive” as it “appear[s] as anti-Republican” and that their “‘progressive’ activities appear to show that [Section] 501(c)(3) may not be appropriate”) scandal broke? Did he say “The targeting was perfect!” Or did he say:

        “The IRS must apply the law in a fair and impartial way, and its employees must act with utmost integrity. This report shows that some of its employees failed that test. I’ve directed Secretary Lew to hold those responsible for these failures accountable, and to make sure that each of the Inspector General’s recommendations are implemented quickly, so that such conduct never happens again. But regardless of how this conduct was allowed to take place, the bottom line is, it was wrong.”

        1. He sure did whisper sweet nothings, but in the end who was held accountable?

          1. The IRS was fined and made to pay damages. You need an audiologist.

            1. So Obo walked and therefore orange man bad?
              You should seek treatment.

          2. Steve Miller and Lois Lerner were fired, even though neither appears to have personally violated any law, or even been responsible for the alleged targeting.

        2. “which apparently included the IRS tagging entities like “progressive” ”

          Yeah, you never got into the details. They added terms like “progressive” to the BOLO list only after it became obvious that they weren’t going to be able to keep it secret, it wasn’t on the list to begin with. It was part of the coverup.

          And even after they added it, the groups with conservative sounding names got systematically different treatment from the ones with liberal sounding names.

          1. “Progressive” was first included in the Touch and Go (TAG) listings in October 26, 2005, long before the Tea Party movement. The TAG listing was expanded in April 2007 to include: “Activities are partisan and appear as anti-Republican. You see references to ‘blue’ as being ‘progressive.'” It was added to the BOLO listing beginning August 10, 2010, the same time ACORN successors (notorious conservative group!) was added. But that’s because everything transferred from TAG to BOLO in August 2010. Some purportedly conservative watch words (like “We the People”) was never placed on BOLO. Same with “Rally Patriots”.

        3. “Not even a smidgen of corruption.”

    2. “If Obama had committed grave offenses while in office that would have merited his impeachment and removal by a Republican-controlled Congress”

      Is Keith auditioning for a position with Babylon Bee?

      1. Are you applying for the Trump supplicant derrière kisser?

        1. “Are you applying for the Trump supplicant derrière kisser?”
          How does the hag’s shit taste, fucking lefty ignoramus?
          You and she lost; grow up, if you’re capable of it.

          1. You’re the one repeating the same uninspired and juvenile insults all over the place, so I’m not sure you’re in a position to tell other people to grow up.

        2. Naw, the only Royal Arse Kisser here is RAK aka Rev Artie Kirkland!

    3. What Obama may or may not have done, is not even tangentially related to Trump’s impeachments…. Except for 72 Congressional working days in late 2009, the Republicans controlled the House since 2011. Why did they not bring up Impeachments of Obama?

      1. “What Obama may or may not have done, is not even tangentially related to Trump’s impeachments….”

        Correct. Unlike Trump, no one tried to impeach Obo for winning an election.

        1. Sevo: Winning an election is one thing. Misbehaving after taking office is another thing. Impeachment is for the latter. Get it!

          You are wrong if you think that one can be elected president and then do whatever he/she pleases.

      2. Develop a brain. Impeach the first AA man elected POTUS? Really? Oh, just go ahead and impeach. Um no….this would have torn apart the Republic by race. No way impeaching POTUS Obama was ever going to happen.

        1. I would have done it. I’m sick of having to cave to every threat of holding new race riots. It’s like giving your kid everything he wants because otherwise he’ll throw a tantrum.

          Bring it already.

          But, yeah, that’s part of why they didn’t impeach him.

          1. Bring [the race riots] already.

            Revealing.

          2. Implicit infantilization of minorities. Nice.

    4. When his Treasury Department approved that conversion of 5.7 billion Omani rials to euros in 2016, he committed an impeachable offense. Economic sanctions were in place and he did not inform Congress. The only reason he wasn’t impeached is because of fear that rioting by a certain minority group would be widespread.

  2. “Nonetheless, all the talk of overturning elections and coups is over the top.”

    Really? I seem to recall some of the left leaning loons were calling for impeachment the day after the election.

    And who can forget the effort to try to get electors to fote for Hillary instead of Trump?

    And what of a 3 year effort of investigations that led to NOTHING?

    And a “whistleblower” who did not have first hand knowledge of what he “witnessed”.

    This all stems from a bunch of folks who absolutely REFUSE to accept the results of an election they lost.

    1. Some on the left call for lots of stuff. Do I get to pretend Neo Nazis speak for the GOP?

      Mueller report sure wasn’t nothing. Benghazi on the other hand…

      20 people independently got a pretty good sense of what Trump wanted, which makes for a good case in and of itself, circumstantial or no.

      This all stems from the right consistently attacking motives not substance, which is telling.

      1. But there is no substance there.

        None.

        Nada.

        Nil.

        Zilch.

        Zip.

        Bupkis.

        The whole thing is “I don’t like Trump”.

        So show me on the constitution where the Bad Orange Man touched you.

        1. Darth, I am betting you get your impeachment information from some source other than watching the proceedings live on television—either in the House or in the Senate. If I am mistaken, if you actually saw the case unfold detail by detail, and your comment above represents what you took away after watching it, then there really is nothing polite I can say about your comment, or about you.

          1. Maybe he just read the transcript?

          2. You spelled “circus” wrong.

          3. I’m not going to bother laughing at Lathrop’s sources; he’s amusing enough without it.

          4. A bunch of accusations that are not included in the articles of impeachment. Schiff and Nadler making a mockery of the Constitution (as is the rest of the Democrat traitors). If you find what they are barfing up creditable, you should stick with cartoon viewing.

      2. 6 of the 7 House managers were calling for impeachment of Trump . . . BEFORE the Ukraine whistleblower ruse ever started.

        1. Source, ML? Because I don’t trust you these days.

            1. Nothing about managers.

              1. JReed, seeing as you’re a visitor here you should know that in the version of the multiverse most of us are operating in time only flows in one direction.

                So when someone says that A happened before B then the things that were caused by B can’t be referenced in A yet, because the causal arrows only point forward in time.

                When ML says that house managers advocated impeachment before the Ukraine call became public he’s necessarily saying that the people who would later become house managers, but weren’t yet at the time, had said (prior to them being house managers) that they supported impeachment. So when he provides a link showing that one of the current house managers had said previously (again, when there were no house managers yet) that he supported impeachment, he’s demonstrating what he claimed.

                Your objection that before there were any house managers appointed not a single one of the null set had advocated impeachment doesn’t work to beings limited to linear time.

                Since you’re part of the club that sees all of time at once you’ll have to remember that not everyone can do that, but since you know now you also knew that in the past, so there’s no need to explain it to you before or again.

        2. “6 of the 7 House managers were calling for impeachment of Trump…”

          Pretty sure “House managers” don’t make up the electoral college. Did you have a point?

      3. Sondland said he assumed Trump wanted an announcement that there would be investigations in return for release of the aid. Sondland also said he was afraid Trump would not release the aid even if the investigations were announced. So which was it?

        Trump stated that he wanted the investigations so that is not in dispute But if release of the aid was offered in return for the investigations why does Sondland fear Trump would continue to withhold the aid even if Ukraine announced investigations?

        1. Because, based on a lifetime of publicly documented events, and Sondland’s personal experience with the President, he knew him to be a compulsive liar?

          1. If Sondland truly believed Trump did not intend to release aid even if Ukraine announced an investigation, how the heck could he conclude that Trump was engaging in an unstated quid pro quo?
            Those beliefs are contradictory.

            As the house proceedings were wrapping up it was clear that all the Dems had was Sondland’s belief that there was a quid pro quo, a supposed unstated deal to release the aid in return for Ukraine’s announcement of an investigation. But even Sandland’s belief was shaky as it was not consistent with his other belief that Trump might withhold the aid even if Ukraine announced the investigation.

            1. Whether someone intends to fulfill their end of a bargain does not determine whether a quid pro quo existed.

              Furthermore, it was William Taylor’s phrase “nightmare scenario” where Zelensky might give in, and yet Trump would still withhold the funds.

              “‘The nightmare’ is the scenario where president Zelensky goes out in public, makes an announcement that he’s going to investigate Burisma and the election in 2016, interference in 2016 election, maybe among other things. He might put that in some series of investigations,” Mr Taylor said.

              He continued: “But he had to — he was going to — the nightmare was he would mention those two, take all the heat from that, get himself in big trouble in this country and probably in his country as well, and the security assistance would not be released. That was the nightmare.”

              In other words, the premise to your argument is incorrect. Taylor was the one who had concerns about Trump fulfilling the aid – not Sondland.

            2. “Those beliefs are contradictory.”

              No they are not. Sondland could believe that the President intended to promise releasing aid in exchange for an announcement, but that the President was a liar (or just unreliable) and was not going to actually honor the proposed quid pro quo.

              Just think of a bribe. If I tell a public official that I will pay them $1M in exchange for some public benefit, but I don’t intend to actually pay the $1M, that doesn’t make it not a quid pro quo. It just makes me a liar in addition to a briber.

              “…it was clear that all the Dems had was Sondland’s belief…”

              No, they also had the transcript (what does “favor” mean to you?) and the administration’s damning refusal to allow people to testify. And, of course, the fact that the aid was actually held up for some time. And Guliani’s idiotic public statements confirming the entire scheme.

      4. Benghazi nothing. Benghazi was a “Fog of War” situation like the 13 embassy attacks und Bush with 12 American deaths including three United States Diplomats you couldn’t name to save your double standard hypocritical life.

        1. “…Benghazi was a “Fog of War” situation…”

          I’ll bet it takes quite a while to come up with lame excuses like that.

    2. If only Keith had addressed some Democrats calling for impeachment day one in his article.

    3. Just a couple of Democrats. Pelosi did not want to impeach Trump.
      Mitch McConnell met with top Republicans the day Obama was sworn in to plan obstructing everything Obama and McConnell said he would do everything in his power to make sure Obama was a one term president.
      The Whistleblower, was like someone who overheard a bomb plot and his report was found credible by the Trump I.G.. Later testimony by first hand witnesses validated the whistleblower.
      This is why we have anonymous tip lines.
      This has nothing to do with not accepting an election, thus is about an out of control president violating the constitution with reckless abandon.

    4. Correction: “And what of a 3 year effort of investigations that led to NOTHING?”

      Donald Trump has been investigated all of his career as he was a con-man and criminal from day one. (You don’t pay fines if you haven’t committed crimes.) Trump, using bribes, payoffs, favors, etc. escaped from many crimes. That is why he is considered Teflon Anyway, what he has done all his career is happening now, hiding his crimes and avoiding the justice system. Hopefully he will be locked-up for life once out of office.

      1. Footnote to my above comment:
        “When a man unprincipled in private life desperate in his fortune, bold in his temper, possessed of considerable talents, having the advantage of military habits — despotic in his ordinary demeanour — known to have scoffed in private at the principles of liberty — when such a man is seen to mount the hobby horse of popularity — to join in the cry of danger to liberty — to take every opportunity of embarrassing the General Government & bringing it under suspicion — to flatter and fall in with all the non sense of the zealots of the day — It may justly be suspected that his object is to throw things into confusion that he may ‘ride the storm and direct the whirlwind.’
        – Alexander Hamilton

  3. The motives behind this impeachment is to turn over the election.

    We should use some of the new “animus” doctrine and do some judicial mind-reading to declare this null and void.

    1. Whining about your telepathic understanding of the other side’s bad faith doesn’t change what impeachment is structurally not.

      1. I’m just putting on my black robes and divining a preferred outcome like much of our judiciary system does.

        1. Love it when commenters admit they’re BSing but then try and turn it into an indictment of some other group.

          Way to lose an argument without dignity, Sam.

          1. I don’t know how it was lost on you, but indicting the activist judges was my intent all along.

            That should be quite clear in sentence #2. Did you try reading that before commenting?

            1. It was pretty clear to me that your real point was about animus (aka mind reading) voiding a facially valid state action, and this was just the prompt used to mention it.

              Just like someone always reminding us of the defamation case of the century something something.

  4. “all the talk of overturning elections and coups is over the top.”

    Is it? Doesn’t it depend on what is alleged in the articles of impeachment, and what is subsequently proven? If the President committed a crime for which he could be jailed, I think you would find that most people would support his removal from office. But, the argument being made by most Democrats is they don’t have to show that he committed a crime. If I undertand Sam G. correctly, he’s proposing that it’s okay to look at what the Democrats have been saying since his the election in the same way that certain federal judges have looked at what Trump has said both as a candidate and while in office as evidence of intent. I would agree with that goose/gander argument. While the talk of overturning elections would certainly qualify as heated rhetoric, it does not seem “over the top,” at least in today’s political environment.

    1. s it? Doesn’t it depend on what is alleged in the articles of impeachment, and what is subsequently proven?

      No. Even if the impeachment were 100% unfounded and bogus, it still would not overturn an election or constitute a coup. It would put Mike Pence, not Hillary Clinton, in the Oval Office.

      1. “No. Even if the impeachment were 100% unfounded and bogus, it still would not overturn an election or constitute a coup. It would put Mike Pence, not Hillary Clinton, in the Oval Office.”

        Those of us not victims of TDS easily recognize a non-sequitur; those afflicted are not so fortunate.
        Hint: Pence was not the candidate for POTUS. Think hard on it; we know it’s difficult.

        1. Your point is what?

      2. Extending this: is there a point at which you think it right and proper (inherently subjective terms) to call it a coup, or overturning?

        Party A holds the Presidency, Party B holds both houses of Congress.

        President A1is removed, VP A2 is promoted – you’ve already said no
        Now President A2 is removed, Speaker B1 is promoted?

        1. Coups don’t follow the Constitution, chief.

  5. Does anyone really think Democrats are doing this so that we can have a President Mike Pence?

    1. captcrisis, there are two ways of looking at that.

      Democrats disagree with Trump’s policies and would also disagree with Pence’s, but at least with Pence there would be a grown up in the Oval Office who would not be a toady for Putin, who would at least understand the principles of basic governance, and who would have the good sense to listen to advisors who know more than he does. So if your concern really is the good of the country, then Pence would be an improvement, even if you don’t agree with his policies.

      The second way of looking at it is that if you want the GOP to implode, and don’t care how much damage they do to the country while they do it, then you want Trump to finish his term and possibly even get re-elected.

      1. BS. Pure and unadulterated BS.

        These are CHILDREN who refuse to accept the results of an election because their preferred candidate sucked at campaigning.

        Grownups, indeed.

        1. ‘Nuh-uh’ is not a great method of argumentation for grownups to use. Adding all caps does not help.

        2. Have you ever considered that you’re refusing to accept the results of the 2018 election?

        3. Speaking of children, you should look at Daniel Drezner’s 1100+ tweet thread where people around Donald Trump consistently describe his behave in the same way they would toddler.

          1. “Speaking of children, you should look at Daniel Drezner’s 1100+ tweet thread where people around Donald Trump consistently describe his behave in the same way they would toddler.”

            What irrelevant twaddle; stuff your TDS up your butt, don’t brag about it here.

            1. It’s not derangement to point out that a bad person is in fact a bad person.

              1. “It’s not derangement to point out that a bad person is in fact a bad person.”

                Leave Obo out of this; we’re discussing your (irrelevant) dislike of Trump and your inability to deal with your emotions.

                1. YOU may be discussing that; you may have noticed pretty much everyone else is ignoring you. And there’s a reason for that.

                2. My emotions are well regulated thanks. And even if Obama isn’t necessarily a good person, that certainly doesn’t imply that Trump is. There’s loads of evidence to the contrary.

    2. No, of course not. If they are successful in removing Trump, they’ll make up some other lie and impeach him, too. Then Nancy is the new president. Easy peasy.

      1. When you’re predicting the future in order to prove a thesis about the present, you’ve gone off the rails.

        1. That’s called science dude. As a progressive, I can see why you would think real science is off the rails. Might not prove out the narrative..

    3. No, they don’t, but they are going to type many words anyway to please their masters.

  6. “Advocates of presidential impeachment and removal bear a very high argumentative burden to justify such an extraordinary act, not just because the presidency is an important office but because the president was elected by the people and will eventually be held accountable by the people for his actions.”

    That’s not actually correct though. There is an institution that was placed between “the people” and “the president” with regards to elections: the Electoral College. So, the people vote for Electors, and those Electors then vote for president. Under the original Constitution, Senators also had an intermediary institution placed between it and the people: state legislatures. So, the people voted for their state legislative members, and those members then voted for Senators. The House, on the other hand, was The People’s chamber as its members were voted for directly by the people, without an intermediary institution. In the present context senators are also chosen directly by the people without an intermediary institution.

    As the president is more steps removed from the people than senators and representatives, and that the will of the people is more accurately represented when the connection between them and the elected official is closer, the will of Congress would appear to be a better reflection of the will of the people. Rather than Congress attempting to “overturn an election,” the president is attempting to thwart the will of the people, as expressed through the direct election of members of the House.

    What a flipp’n great system!

    1. Yes, but that’s not how it works.

  7. “Does an Impeachment Overturn an Election?”

    Perhaps in an America prior to the 12th amendment, when the second-place presidential candidate would then succeed to the presidency, but not today where the president’s hand-picked vice president then becomes president

  8. “But rhetoric of overturning elections suggests that the impeachment power can never be legitimately used against a president, which would surely be a dangerous mistake.”

    I don’t think that’s what it suggests at all.

    What is being suggested is that using impeachment MERELY TO ACHIEVE PARTISAN ENDS, without a legitimate basis, constitutes “overturning the election”.

    Whether that is the case here is up to you. But it seems to me a perfectly reasonable case. After all, if the President were impeached and removed on Day 1 of his tenure, it seems to me quite right to say the election was overturned (especially if the VP were similarly impeached and removed). And it seems quite wrong to say that isn’t the case merely because “it’s in the Constitution”.

  9. “and will eventually be held accountable by the people for his actions.”

    How in a system where only one more term is possible? Might work in the present case and a president in their first term, as a general argument about the relation between impeachment and elections, I don’t think it works

  10. I don’t think it necessarily does. But given that Democrats have openly said they have to do this via impeachment because they can’t trust the voters to reach the “right” result, it certainly sounds like they’re just doing all of this because they couldn’t win the election itself. Personally, I don’t like the Ukraine dealings, but I think that it’s a political matter that should be dealt with at the ballot box, not an impeachable offense.

  11. I would be inclined to agree with the proposition that impeachment and removal of a President overturns of the voters. I think it does damage to the body politic, much as surgery cuts it (and patients can die from it). And I would be inclined to agree with the obvious corollaries, that like major surgery in the world of health care, it is an extreme, nuclear-option remedy to be considered only for grave offenses.

    And I think Trump’s lawyers are entirely entitled to use this fact – I think it is a fact – in his defense, and to argue that his conduct isn’t sufficiently grave and the situation isn’t sufficiently extreme. Indeed, they’d probably be giving incompetent advocacy if they didn’t.

    It is for the Senate to decide whether the matter has sufficient gravity to overcome the hurdles which I believe ought to be there.

    1. ReaderY, do you agree there should be a trial in the Senate, beginning with enforceable subpoenas for documents and witnesses? Try not to hedge your answer.

      1. Oh, good! Lathrop is here with a ‘when did you stop beating your wife’ question, and hopes (? assumes ?) he won’t be called on it.
        Consider yourself called on it; not everyone here is as pretentious and stupid as you.

  12. You seem to understand the issue. It’s not so much whether “overturn an election” is technically accurate. Rather it’s the message you are sending to voters.

    An impeachment and removal for something really serious wouldn’t look like what’s happening now.

    1. Just because you and FOX News insist it’s not being done seriously enough, doesn’t mean it isn’t serious.

      1. Everyone can see it for what it is.

        It’s not serious enough for about half the country to take it seriously.

        1. A significant majority of the country thinks he’s guilty. A majority think he should be removed. Not really clear how this justifies your argumentum ad populum.

          1. “A significant majority of the country thinks he’s guilty. A majority think he should be removed. Not really clear how this justifies your argumentum ad populum.”

            Why do lefty ignoramuses live in fantasy worlds? Is it because they hope the rest of us are stupid enough to buy their lies? Or is it just rank stupidity?
            Tell us again about how you and that hag were really gonna win if those darn Russkis didn’t convince all the hags voters to vote for Trump. It’s always good for a laugh.

            1. We don’t hope you’re stupid, Sevo. We hope you’re acting stupid.

            2. Among other problems with what you’re saying, I am about as opposite from “lefty” as one can be.

            3. Because the real world isn’t emotionally satisfying for narcissists. That’s why they make up stories and decide to believe them.

              1. Ben, there’s polling. Real-world polling.

                Is that not emotionally satisfying for you?

                And the people who are concerned about Trump and want to use Constitutional methods to deal with him are by definition not narcissists.
                Those who don’t care and wish Trump would jail more of his opposition and ignore more judges…well, they’re on your side.

  13. This is a pretty good post, especially the last three paragraphs. I approve.

  14. The problem is the abuse of power has to come to light. So Trump’s abuse of power came to light thanks to whistleblower complaint. The only other impeachable offense I can think of is Cheney pressuring CIA interrogators to use water boarding for false confessions. So had a whistleblower shed light on what Cheney was doing and a string of witnesses provided testimony as damning as the witnesses called in this Ukraine scandal then Cheney should have been removed from office.

    I think some of the less informed non partisan Americans are thrown off by how quickly this came to light and how airtight the case is against Trump…it just seems too good to be true in light of Democrats obvious Trump Derangement Syndrome. My reply to them is Trump really is this big a clown and he really is incompetent and quite frankly his Cabinet should remove him via the 25th Amendment.

    1. America’s better elements made a major mistake by letting the torturers, lying warmongers, and mercenaries off the hook a few years ago.

      I hope we don’t make the same mistake in the next few years.

      1. “America’s better elements made a major mistake by letting the torturers, lying warmongers, and mercenaries off the hook a few years ago.”

        So you and Obo got passes, asshole bigot?

  15. I think the obvious point here is that nobody really believes their partisan rhetoric. When it’s your President on the dock, it’s “overturning the election”. When it’s the other guy’s President on the dock, it’s a “solemn constitutional process”.

    Which is why the framers were so wise to make this a political process. No court could decide this. 2/3rds of the Senate means there has to be a societal consensus to remove the President.

    1. “I think the obvious point here is that nobody really believes their partisan rhetoric. When it’s your President on the dock, it’s “overturning the election”. When it’s the other guy’s President on the dock, it’s a “solemn constitutional process”.”

      Meh. The question is, if you’re talking about “overturning an election”, are you talking about the ones in 2016, or 2018? Because in 2018, the D’s came to control the House, enabling them to vote impeachment. In 2020, maybe they’ll get the Senate, too, and Mitch can go back to keeping things from happening as the minority leader, instead of keeping things from happening as the majority leader.

      1. Good point!

        But it dovetails with mine. I doubt anyone here, liberal or conservative, would say “I would never support an impeachment because it overturns the result of an election”. Nor would anyone say “there could be no possibility that someone might propose impeachment merely because they don’t like election results”.

        So all the rhetorical poses about this are situational. When people see an impeachment they don’t approve of, they bring out the “overturning an election” talking point.

        1. Impeachment is always going to depend quite strongly on public mood. Nixon got re-elected, but once the facts started coming out, the public turned against him and he would have been impeached and quite likely removed. Clinton was impeached, but the public didn’t think lying about a mistress was a removable offense, so the Senate acquitted him and punished the R’s for wasting their time (even though Clinton was guilty of perjury). The thing is, one’s own partisans can be counted on to back the party, and the other party’s can usually be counted on to back theirs… the rest, the non-partisans, the loosely-aligned and etc. however either want the guy to stay in office, or they want him out. Obama kept popular support no matter how badly the R’s wanted him out. The same was true for W with regard to D’s and Clinton back to the R’s again. But Trump never had popular support. He hasn’t lost any of his fans, but he hasn’t ever convinced his non-fans that he’s actually doing a great job, better than Lincoln or Washington, even. Technically, he has lower approval numbers than Nixon had for most of his run.

          1. Impeachment is always going to depend quite strongly on public mood.

            And it’s supposed to. That’s why the Senate decides it and you need a 2/3 majority.

  16. Left out of Whittington’s analysis is any acknowledgment that impeachment is no less legitimate a process then an election. Indeed, I suggest the founders—by use of “sole power” clauses, and the super-majority requirement—showed they intended impeachment to be an act of sovereign power, and thus closer to direct exercise of sovereign will than any election. For that reason, whatever you make of an impeachment which fails to remove a president, an impeachment which does remove a president must be regarded as the most legitimate of Constitutional processes, and thus superior to the preceding election.

  17. To me, the ideal outcome has always be, and will always be impeachment followed by Trump winning 2020 in a landslide. Everyone loves a comeback.

    1. ” the ideal outcome has always be, and will always be impeachment followed by Trump winning 2020 in a landslide.”

      Nah. Ideally, he’d win the popular vote, only to lose in the EC. That would be poetic. And possibly justice.

      The fun thing to hypothesize about, however, is just what he’s gonna do when he isn’t immune from criminal prosecution due to being President. He’s already changed his state of residence from NY to FL… is he going to have to seek refuge somewhere overseas?

      1. That’s the delusional and deranged thing to hypothesize about.

        1. What’s delusional and/or deranged about it?

    2. “followed by Trump winning 2020 in a landslide”

      Just how many uneducated, intolerant, rural, easily frightened, can’t-keep-up, white, older, religious, southern males do you figure are left in America?

      Pres. Trump needed a three-cushion bank shot at the Electoral College the first time. After four years of improvement of our electorate, how likely is it that his remaining base will be big enough to position him for another improbable trick shot?

      1. James, asshole bigot?
        You and that hag lost. Maybe one day, you’ll grow up and accept that. Until then, just keep on whining; it’s so appropriate.

        1. You won an election with a trick shot.

          Your betters won the culture war, stomping the preferences of all conservatives, whether it’s a downscale clinger sputtering illiterately about socialists and immigrants or a law professor publishing partisan polemics from a fancy office within the strong liberal-libertarian academia he resents.

          It’s good to be on my side of this.

        2. “James, asshole bigot?”

          You lose track of who you’re arguing with again?
          y’know, losing arguments to people who aren’t even involved in them is a pretty good sign to hang it up.

        3. Most of us have learned not to read his posts. It’s nothing but name-calling.

          Picture the dumbest person you ever met. Then imagine him muttering about people beyond his understanding. That’s what his posts are like.

          1. He only shows up when these posts are linked on the front page of reason.

            Even that is too often.

  18. There’s some major gaslighting in the implication that this impeachment effort is not politically-motivated.

    1. At the other end, there’s some huffing and puffing pretending that it isn’t/wasn’t deserved, either.

      1. At the same time it’s a boy who cried wolf problem.

        Sure, he may have acted extraordinarily badly, but when his accusers have been lying about him on every topic for years your default assumption should be that they’re lying again. It’s pretty hard to overcome that for anyone who isn’t so disgusted by his self proclaimed actions as to evaluate his results on their merits.

  19. ” because the president was elected by the people”

    The President is not elected by the people. If the President WAS elected by the people, then right now, the President would be whoever followed Hillary Clinton after her impeachment in around March of 2017, and conviction by the following June.

    Impeachment DOESN’T overturn elections. If impeachment overturned elections, then Hillary would become President if Trump is convicted. Hillary will not become President. Maybe Mr. Pence will, but Hillary will not. Note the interesting thought experiment… if not for the electoral college, the roles of “people complaining about partisan impeachment” and “people saying ‘what partisan impeachment’? would be completely reversed.

  20. The Conspirators and their carefully cultivated collection of conservative commenters deserve one another.

    And need one another, to huddle together for warmth as the liberal-libertarian mainstream continues to rout conservatives in the American culture war.

    Bigotry and backwardness have consequences. I would have thought the law professors, at least, would recognize this, after our repeated national experience with successive waves of intolerance and ignorance (aimed at Italians, Jews, blacks, Asians, Catholics, gays, the Irish, agnostics, women, eastern Europeans, Hispanics, Muslims, and others). Yet they stick with the gay-bashing, race-targeting voter suppression, bigoted immigration positions, and the like.

    And wonder why the disdain of young Americans will control their political future.

    1. You are boring, and an asshole.

      1. Losing the culture war has made most of you guys quite cranky.

        1. “Losing the culture war has made most of you guys quite cranky.

          Was the the culture war decided by the election of 11/8/16?
          You and the hag lost, loser. Grow up, if you are capable of it, asshole bigot.

  21. I can’t wait for November.

    It’s going to be absolutely gruesome.

    1. Why gruesome, and why would that appeal to anyone?

      1. You are boring, and an asshole.

        1. Na I just think he is an ass clown.

          1. So you have that in common.

            1. “So you have that in common.”

              Were you born a whiny asshole, or did it take you long years of practice to become one?

              1. Gosh, you’re such a font of witty repartee.

  22. Here’s the real kicker —
    The assumption that President Trump can influence his 2020 election by with-holding funding to Ukraine for an investigation.
    … relies upon …
    The assumption that any election success of Joe Biden is determined by funding to Ukraine and NOT allowing any Ukrainian Investigation.

    Its humorous how the accusers can dismiss the opposite side of their very own accusations. I for one lean towards Joe Biden’s success is determined by Ukrainian funding.

    Sounds like maybe its Ukrainian Collusion not Russian Collusion.

  23. Does an Impeachment Overturn an Election?
    Yes and no for a Presidential impeachment. Yes the President is removed from office. No, the Vice President of the same party becomes President and still runs that parties agenda. The Democrats plan is to go after the VP too, because the next step in succession is the Speaker of the House. That only works if the opposing party controls the House. The Democrats would like to see President Pelosi, and that would overturn the election. I doubt they can do that before the next election, but if Trump and Pence are reelected, they will keep trying.

    1. The Democrats plan is to go after the VP too

      Fan fiction.

      1. Just like almost everything else the Dems say

  24. From the article: “Advocates of presidential impeachment and removal bear a very high argumentative burden to justify such an extraordinary act, not just because the presidency is an important office but because the president was elected by the people and will eventually be held accountable by the people for his actions.”

    On the other hand, election by the people is not even mentioned in the Constitution. Only a Constitutional loophole allows for that de facto situation today. I think the impeachment process might be significantly different, had the Framers actually accounted for the possibility of direct popular Presidential vote when they drafted the impeachment clause. The author makes a good, albeit indirect case, for why direct election of Executive officeholders is not only unintended, but also undesirable.

  25. Bunch of irrelevant nonsense. The “professor” appears to know nothing about the history of this aspect of the Constitution. (And I’m not surprised.)

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Free Speech

Pro Bono M.D. Pa. Local Counsel for a Fun First Amendment / Unsealing Case?

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There's an interesting First Amendment challenge to a state teacher complaint secrecy statute (see Doe v. Governor (3d Cir. 2019))—but the entire case in the Middle District of Pennsylvania is sealed, so people can't monitor what's happening in the challenge. (The Third Circuit decision I linked to gives a peek at what's going on, as do some unsealed documents in the Third Circuit docket, but many past and all future filings in the District Court are inaccessible.)

My students and I plan on filing a motion to intervene and unseal, on behalf of the Pennsylvania Center for the First Amendment and perhaps a couple of other parties. I think we're on top of both the legal arguments and the procedures for District Courts (I've filed in several District Courts throughout the country), but we need someone who is willing to act as pro bono local counsel. Anyone interested? If so, please let me know at volokh at law.ucla.edu. Thanks!

Impeachment

Is Impeaching Some "Normal" Politicians too High a Price to Pay for Getting Rid of Presidents who Abuse their Power?—A Rejoinder to Josh Blackman

Josh Blackman argues that the tradeoff isn't worth it. Here's why I disagree.

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In a thoughtful recent post, co-blogger Josh Blackman takes issue with part of my earlier post criticizing the "slippery slope" argument against impeaching presidents for abuse of power. In the original post, I made the point that:

In criminal cases, there is good reason to avoid conviction unless the charge against the accused is an offense clearly delineated by law, and guilt has been proven beyond a reasonable doubt. The reason why is that the defendant stands to lose her liberty or property—or even her life. By contrast, the risk facing an impeached president is removal from a position of enormous power.

Unlike unjust deprivation of life, liberty, or property, removal from power doesn't violate anyone's human rights. When real human rights are at stake, it may make sense to allow ten guilty people to go free, in order to save even one innocent from conviction. When it comes to positions of power, almost the opposite is true: Removing ten "normal" politicians is more than justified if that is the only way to get rid of one who engages in grave abuses of power.

Josh does not agree:

Ilya thinks it is justified to remove "ten 'normal'" Presidents to "get rid of one who engages in grave abuses of power." In more than two centuries, we have had only 44 Presidents (45 if you count Cleveland twice). If Ilya's standard is correct, then it would have been appropriate to remove nearly a quarter of American Presidents. Every generation would have at least one convicted President. To get Trump, would it be worth it to remove the prior nine presidents:  Johnson, Nixon, Ford, Carter, Reagan, Bush, Clinton, Bush, and Obama (well, exclude Nixon, and perhaps Clinton)? Ilya's "n guilty men" standard may make more sense for lower-ranking officials. Their removals do not alter the arc of history. But the President cannot be considered a "'normal' politician." Indeed, removing any one of these Presidents would have altered the Republic in ways I cannot fully articulate. I do not agree with Ilya that such an over-inclusive approach would be justified. Such avulsive changes would tear at the fabric of our country on a quadrennial basis.

There are several problems with Josh's argument. First, as he acknowledges, his approach has a "perverse consequence" in so far as "it would be easier to remove lower-level officers, whose powers may be relatively insignificant, but harder to remove the President, who personally wields 'the executive power.'"

This asymmetry isn't just perverse in consequentialist terms, it is also unconstitutional. The Impeachment Clause establishes a single  standard for removal for the "President, Vice President and all civil Officers of the United States." All can be ousted from power for committing "Treason, Bribery, or other high Crimes and Misdemeanors." Extensive historical evidence indicates that this standard covered serious noncriminal abuses of power, as well as violations of specific laws and statutes. For helpful summaries of the relevant evidence, see recent analyses by Gene Healy of the Cato Institute, prominent conservative legal scholar Michael Stokes Paulsen (here, here, and here), and Keith Whittington. The Framers could have easily created a special, separate standard to protect the President. But they obviously chose not do so.

Josh also ignores a crucial way in which removing presidents does not "alter the arc of history." As I noted in my original post, a removed president will almost always be succeeded by his or her own hand-picked vice president, who is a member of the same party and likely to be committed to a similar policy agenda on most issues. Removing the abusive president will likely put an end to whatever abuses led to impeachment, but would not lead to significantly divergent policies across the board.

Josh further ignores the dynamic effects of a strong norm of impeachment and removal for abuses of power. As also noted in my post, in that world presidents will live in greater fear of impeachment than they do now, and will be more likely to shy away from actions that could be considered abuses. Instead of more presidents actually being impeached and removed, we would likely see more presidents exercising preemptive self-restraint to avoid the risk of removal. That strikes me as a valuable constraint on power, especially in a world where the president wields enormous discretionary authority and often has strong incentives to overreach in order to advance his political interests and push through his party's agenda.

Of course, any such deterrent effect will be diminished by the fact that removal requires a 2/3 majority in the Senate, which will necessitate support from many senators from the president's own party. In practice, that will rarely be achieved. Therefore, Josh's fear that presidents are likely to be removed for "acting like a politician" is misplaced. Indeed, the supermajority requirement often shields even presidents who have committed very serious abuses of power and violations of the law. But the threat of impeachment for abuse of power can still create a useful marginal deterrent effect, even if a modest one.

I do agree with Josh's point that, under my approach a good many past presidents deserved impeachment and removal. That strikes me as a feature, not a bug. All too many past presidents have gotten away with horrific illegality and abuses of power, such as FDR's internment of Japanese-Americans in concentration camps, Woodrow Wilson's massive violations of civil liberties, and—most recently—Obama's starting two wars without congressional authorization, and Trump's cruel family separation and travel ban policies. Establishing stronger deterrents against these sorts of abuses could indeed, as Josh puts it, lead to "avulsive changes." Some relatively "normal" politicians might also suffer in the process, if they too get impeached. If so, I say let the avulsion begin!

It is also worth noting that Josh is wrong to suggest that Trump's actions amount to just acting "like a politician." Jonathan Adler explains some of the flaws in that characterization. In addition, Trump's withholding of military aid from Ukraine in order to pressure them to help his reelection campaign also violated both the Constitution and federal criminal law. The Democrats would have done well to emphasize these points far more than they have, though the articles of impeachment against Trump are drafted broadly enough to include these points.

That said, I do not believe that impeachment can be the only or even the primary strategy for curbing abuses of presidential power. We need multiple safeguards. They should include more forceful assertion of congressional prerogatives, a crackdown on unconstitutional delegation of power to the executive, and stronger and less deferential judicial review of executive action, including in the areas of immigration and national security policy, where both Trump and past presidents have committed some of their worst abuses.

The latter is actually another area where Josh and I differ. In addition to favoring a narrow view of appropriate grounds for impeachment, he also supports very broad deference judicial  to the president in a wide range of areas. Both of these positions are problematic. But, if adopted in combination, they are more dangerous than either would be alone, as the combination simultaneously disables multiple constraints on presidential power, preventing one from picking up the slack left over from the erosion of the other.

Josh is a former student of mine, and one of the nation's most impressive young legal scholars. Few legal academics have achieved so much so early in their careers. But he does, I think, sometimes go wrong on issues of executive power. Perhaps, as Mr. Miyagi  put it, there is "no such thing as bad student, only bad teacher."  If so, the ultimate fault here is mine. Maybe this post will help remedy it!

 

 

 

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  1. Ilya – I appreciate your concern to remain intellectually consistent – however – where were you during the Obama administration which by any objective standard was far more egregious.
    Fast and furious
    IRS targeting
    Iran payments
    domestic spying
    presidential candidate spying
    Blackpanther election case
    Fisa abuse
    solyndra
    state department email
    crony capitism in the auto bailout

    1. Magnificent list of right-wing fever dreams there joe_dallas.

      All debunked, discredited or shown to be nothing but I am sure that doesn’t matter to you. You need to believe and I don’t want to deprive you of that. BTW you forgot Benghazi.

      What is particularly amusing is that the “state department email” thing has been the subject of a DoJ investigation for nearly two years. The Trump DoJ. Because of a Trump demand not because of any evidence. It was concluded last month: nothing there.

      But you keep believing, OK? (Unless you are just trolling in which case congrats you got me.)

      1. “All debunked, discredited or shown to be nothing but I am sure that doesn’t matter to you….”

        “Federal judge approves $3.5 million settlement in IRS tea party targeting”
        https://www.washingtontimes.com/news/2018/apr/4/irs-tea-party-targeting-35-million-settlement-appr/

        I’m not going to waste time on the remainder of your lies.

      2. “All debunked, discredited or shown to be nothing but I am sure that doesn’t matter to you. You need to believe and I don’t want to deprive you of that. ”

        You mayhave noticed I prefaced my comment “by any objective standard. ”

        appears your objectivity has fallen very short

      3. Better check your mechanics because your orbit is abnormal.

    2. “crony capitism in the auto bailout”
      As I recall, this illegally deprived bond-holders of their property, absent due process.

    3. Yeah, where was he? Why oh why has Prof. Somin been so reluctant to criticize the government?

      1. He called for Obama’s impeachment and removal? When?

    4. Which of these rose to the level of “high crimes and misdemeanors”, as generally understood prior to the current proceedings?

      These all involve clear evidence of wrongdoing or maladministration by the Obama administration (as must be evident to all except those who are in serious denial). But what exactly could Obama himself be reasonably impeached for?

      The “recess” appointments move might have qualified if the courts had treated it as a political question and declined to do anything. But as it was, the courts put it all on hold and eventually ruled against it. So no harm done and no need to impeach.

      IRS targeting? It was a clear case of wrongdoing. But the case is clearest against Lois Lerner, and less clear against higher officials.

      Fast and Furious? A serious blunder and very embarrassing episode. But is it enough to impeach anyone?

      The wiretapping of political opponents on pretextual grounds should be impeachable (and convictable) based on what we know now, but there was nowhere near enough information while Obama was in office.

      1. “Fast and Furious? A serious blunder and very embarrassing episode. ”

        Obama was, at the time, trying to argue that US gun stores had to be more tightly regulated, and the line he was putting out was that US gun stores were a major source of Mexican drug cartel weapons.

        While Fast and Furious was utterly useless for it’s stated purpose due to not bothering to follow the guns, (The Bush administration had tried something similar except that they DID try to trace the guns, and abandoned it when they realized they were losing track of too many of them.) it was very well suited to generating the illusion that the cartels were arming themselves from US sources.

        So, no, it wasn’t a blunder. It was a very despicable PR scheme to promote gun control by getting people killed with US guns.

        1. Another nefarious plot uncovered by Brett.

          Where do you find the time?

        2. OK. But was it worth impeaching Obama over? I’d say no.

          1. I agree it wasn’t worth impeaching Obama over it however it was far more egregious than Trump’s actions.

    5. google is your friend – you should use it before resorting to whataboutism.

      https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3063406

    6. Don’t forget assassinating a US citizen by drone strike outside a combat zone.

      1. That was bad. But Trump ordered a raid that killed Nawar al-Awlaki soooooo he’s not exactly innocent on the getting US citizens killed front.

        1. Collateral damage is different than targeting.

    7. Prof Somin did call out the Obama administration on most of those scandals at one point or another. At least, the scandals that matched his own areas of interest and expertise.

      In fairness, he did not call for impeachment – but if he had, it would have been fairly pointless given the understandings of the time. Now that the understandings have (apparently) changed, he is being consistent in arguing that Obama should also have been impeached under the same standard.

    8. “Any objective standard” as defined by Joe_dallas.

      What a joke.

      Just as an example, is “state department email” should have led to Obama’s impeachment (a ridiculous notion, but go with it) what about Trump’s repeated use of insecure cell phones? The President letting Russia listen in on his phone calls seems dangerous.

  2. This may be an academic discussion, but I find it disconcerting that we have witnessed an extreme abuse of power has been assumed, and is not being debated.

    That, after all, is the key point.

    To give an example that I think we all agree on. Andrew Jackson should have been impeached for the Trail of Tears. Even presuming it was stopped before people died (ignoring the thousands of murder charges), he clearly, willfully violated a Supreme Court order. That is abuse of power worthy of impeachment.

    In this case, Trump made a request to investigate Burisma, a company that was widely suspected of corruption at all levels of both government and media. He also withheld aid for less than a week, long before he was required to send it. If he refused to send it, he could have notified Congress with valid reasons. However, that notice would not have been required for months. As far as I am aware, no one in Ukraine even knew that anything was being held back and there was no implication that it was contingent on their actions at any point.

    I do not see how this can be interpreted as an abuse of power. If this is an abuse of power, then practically every action a president can take is an abuse of power.

    1. In this case, Trump made a request to investigate Burisma, a company that was widely suspected of corruption at all levels of both government and media. He also withheld aid for less than a week, long before he was required to send it. If he refused to send it, he could have notified Congress with valid reasons. However, that notice would not have been required for months. As far as I am aware, no one in Ukraine even knew that anything was being held back and there was no implication that it was contingent on their actions at any point.

      Most if not all of those facts are made up, starting with the fact that he asked for an (announcement of an) investigation of the Bidens, not Burisma.

      Aid was not withheld for “less than a week”; you might want to invest in a calendar. And while if he had valid reasons he could have notified Congress, he failed to do so, and that notice was overdue. But he didn’t notify Congress because he didn’t have valid reasons.

      Ukraine did in fact know that things were being held back, and they were both implicitly and explicitly told that it was contingent on their actions. (Hint: the call isn’t the only act in Trump’s conspiracy.)

      1. Most if not all of those facts are made up, starting with the fact that he asked for an (announcement of an) investigation of the Bidens, not Burisma.

        Suppose he did.

        How is that worse than indicting Rick Perry for abuse of power?

        1. I don’t know. Is it worse? Maybe it’s not. What does that have to do with the price of tea in China?

          1. He just reached in his bag, grabbed something, and didn’t bother to see what it was.

    2. I think you are a little confused, Jackson did not violate any Supreme Court rulings, the Indian Removal act of 1830 was never litigated in the Supreme Court.

      Worcester v Georgia where Jackson made his famous remark about them enforcing their own decision was against the State of Georgia and neither the US or Jackson were parties. His remark was in the context that he wasn’t going to call out US troops to confront Georgia’s militia to enforce the judgement. I’m not sure Jackson had a legal obligation to enforce that judgement, especially if he would have to actually go to war to do it, at a time when Georgia might have had more military resources than the Federal Government at their disposal.

      Of course none of that condones the Trail of Tears, but it would be hard for Congress to impeach Jackson for implementing their Indian Removal Act.

  3. Josh Blackman has much the better of this argument, it seems to me.

    As a practical matter, no president will be convicted and removed, barring a major bipartisan consensus. Presidents might temper their actions for fear of being impeached, even if there is no realistic prospect of removal. But even that depends on impeachment of a president being rare, and it is now in danger of becoming routine.

    With the precedent set by this case, how will the next Democratic President be treated by a Republican House? It seems very likely that there will be pressure on the House to impeach on any serious allegations or disagreements, of which there were several during the Obama presidency. All that is necessary is that the allegations should be more serious than the ones in this case. And the ones in this case seem very small beans.

    Re appointed officers, I don’t agree that applying a different standard is unconstitutional. The House has sole power of impeachment, but there is no mandate that it has to be used. In effect, the House may (not shall) impeach, and the Senate may (not shall) convict. As a practical matter, the necessary consensus might be much easier to achieve for a minor appointed official than for the president. Nothing unconstitutional about that.

    1. With the precedent set by this case, how will the next Democratic President be treated by a Republican House?

      It is mindboggling to me that after the treatment of Bill Clinton, any Republican can make this argument with a straight face. (n.b., I supported the impeachment of Clinton.)

      1. No need to go back to Clinton. Remember the birthers!

      2. There is a steady erosion of the standards expected for determining “high crimes and misdemeanors”. That’s based in part on tit-for-tat. The Thomas hearings lead to the Clinton impeachment, which leads to Trump, which in turn leads to whoever is next.

        Will presidents be able to assert executive privilege any more without being impeached? The second article here seems to be an assertion that presidents have no such privilege.

        1. Again: Trump did not assert executive privilege. He asserted blanket immunity, saying that his guys didn’t even have to show up and assert executive privilege.

          1. Does he have blanket immunity? If it’s in dispute, take it to court.

            1. This. Have people forgotten this is in the context of the House claiming they can do whatever they want and normal rules of investigation don’t apply?

      3. It shouldn’t boggle your mind: At least Clinton unambiguously committed real crimes.

    2. That’s my concern: If impeachment becomes substantially more common in the absence of convictions, impeachment loses its sting.

      1. Here’s one scenario: what happens if this House impeaches Trump again? Various court filings have said they are continuing to investigate.

        The House has the right to do so. But I predict that the Senate would react by downgrading the spectacle. Perhaps refer it all to a committee to make a recommendation, as has been done for impeachments of minor officials? The Senate process we’re seeing is appropriate for serious charges, not the sort of vexatious articles that have been submitted.

  4. Well let’s try think about it for a second logically, because I admit impeaching presidents at the drop of a hat does sound like an attractive proposition.

    However you have to concede that we’ve been doing it Josh’s way for over 200 years now, never impeached a president or even sent them to jail after they were out. And it would be hard to imagine how things could have turned out better than they have. Not that everything is perfect, but really we are mostly looking at a best case scenario even looking around the world at other countries that may have it just as good or almost as good. Italy isn’t that far behind us despite changing governments at least annually, a little behind Mississippi out poorest state, but even that isn’t a fair alternative outcome because we did have to send troops there to kind of get things back on track. England is generally as stable as we are and has benefitted similarly.

    So as attractive as Illya’s idea is I’d say let’s keep with what even the harshest critic would fairmindedly have to admit has worked pretty damn well, unless they have some counter examples they can point to. Until of course it demonstrably stops working and we really do get a presidential dictator who is literally Hitler, or Stalin and not just a strange Orange Man who is exceedingly lucky.

    1. You mean the “harshest critic” who flips between “this is perfect, everything is great!” and “civil war is right around the corner, the system is corrupt and everything is terrible!” based on who’s in the White House?

    2. > And it would be hard to imagine how things could have turned out better than they have.

      Wait, what? You think we live in the best of all possible worlds?

      1. Well, I haven’t read enough science fiction to say definitively it’s the best of all possible world’s. But let’s see, we are world leaders in just about every technology. American inventions have led world progress with the petroleum industry, telegraph and telephone, computers to the highest living standards for the most people ever. The world is the most peaceful it’s ever been, plagues pretty much eliminated. Vigorous world wide commerce all led by our economic engine.

        And I think one of the primary reasons that we’ve led such remarkable world progress is that we’ve had a remarkably stable democracy that is very reluctant to remove our leaders other than by election.

        Ilya somehow simultaneously thinks that coming to America is the only hope for the world’s poor, but there is no need to maintain the stability that makes America so attractive.

        1. If there are no borders, why not roll into corrupt countries and end their dictatorships and make them new states? Certainly their people want it. Only the corrupts ones don’t, but that carries zero ethical weight.

  5. There are no “normal” politicians.

    They are all extreme egomaniacs.

  6. I tend to agree, actually, with the general thrust of Ilya Somin’s argument against the “slippery slope” argument against impeachment.

    If there are 2/3 votes in the Senate to convict and remove a duly elected president, when the next election is always just the blink of an eye away in the big picture, then let them do it and reap whatever consequences result.

    The idea that Trump should be impeached and removed on the basis of any kind of historical standard is laughable on its face. Somin practically admits as much here, with respect to the standard he proposes. I would disagree with Somin, though, that Trump should be impeached and removed, even under some totally new theoretical ideal standard that departs from history, for the conduct in question. Perhaps some other actions common to nearly every administration for over a century, involving basic and longstanding constitutional violations of federalism for example, would qualify.

    The more important point to me, is that the election, impeachment, or removal of a President shouldn’t matter as much as it does, because the federal government shouldn’t have 90% of the power that it does.

    1. I’d be happy to let the Senate reap the consequences, if in any congress, an impeachment occurs (conviction or no), All senator’s terms expire, and they must stand for reelection.

  7. When impeachment becomes overtly partisan, as it has now, it also becomes meaningless. Future Presidents may even come to see impeachment as a badge of honor because its a sign her/his enemies hate him. In fact, Trump may use impeachment as a badge of honor because the right hates Pelosi, Schumer, AOC, etc so much. It certainly has helped his fundraising.

    BTW, the main reason ” to avoid conviction unless the charge against the accused is an offense clearly delineated by law, and guilt has been proven beyond a reasonable doubt” is because if its not clearly delineated, it will be overturned: https://en.wikipedia.org/wiki/McDonnell_v._United_States

    And with politicians, this amounts to vindication.

    1. McDonnell is a federal criminal case, and the standards articulated have nothing to with impeachment. Judicial review of impeachments is governed by Nixon v. US, in which SCOTUS held that whether someone was properly “tried by the Senate” was not non-reviewable political question. The “sole power to try all impeachments” means what it says.

      1. Was a political question and therefore not reviewable.

  8. Maybe the problem isn’t with the scope of impeachment powers per se, but with the entire model of the presidential system.

    1. Lefties aren’t getting what they want, therefore the system is broken.

      1. No. Presidential systems just tend to create overpowered Presidents that devolve into authoritarian states with unaccountable executives. The particular ideology of the President or legislature doesn’t matter much. Latin America is filled with examples of both right-wing and left-wing Presidential governments devolving into authoritarian regimes.

        1. Since the US is arguable the oldest and largest presidential system but has not (yet) devolved into an authoritarian state, I think your argument that it is a fundamental failure of the presidential system is weak.

          I will, however, look to a deeper root cause – the size and scope of government. The incentive towards authoritarianism only works if the government has significant authority in the first place. If government were restricted to the few constitutionally-mandated responsibilities, those seeking power would go other places. We only care now because we have let the stakes get too high.

  9. Deciding you can undo voters’ choices arbitrarily with selectively applied double standards will indeed result in “too high a price”. So yes.

    Voters choosing leaders and rule of law isn’t something we should give up just now. Glad I could clear that up.

    1. The people impeaching the President, and trying the impeachment, were elected too. The power of impeachment was reserved by the people (i.e., the voters). Denying the right of impeachment is a denial of voters’ power over their own political systems.

      1. It’s not denied.

        I think we can look forward to more incidents of impeachment as a political stunt like this. Maybe every year.

  10. Is Impeaching Some “Normal” Politicians too High a Price to Pay for Getting Rid of Presidents who Abuse their Power?

    Not too high at all. In fact, it’s a great idea. We should throw out more corrupt executives and politicians, not less.

    We should also add in some radical transparency measures so that these guys can’t cover-up what they’re doing so easily.

    1. I agree totally, we should drain the swamp. Trump 2020.

      1. All you’re missing is a fishy link, and you’d be indistinguishable from a bot.

      2. Not for nothing, but draining swamps has a lot of negative ecological consequences.

  11. I think you are dead right here Ilya. The limitless power and protections afforded to the president is the core of America’s problems. Not only will presidents be more accountable if their abuses are acted on, but there will be collateral effects on Congress. Our legislators should be more accountable to policy so that people can hold their congressmen to their votes.

  12. The real solution is reduce the power of the federal government so we don’t care who’s in charge so much. More frequent impeachment just becomes a case of who can get away with abuse and who can’t. The fundamental abuse is the government has too much power. Everything else is consequent to that.

  13. “I do agree with Josh’s point that, under my approach a good many past presidents deserved impeachment and removal. That strikes me as a feature, not a bug. All too many past presidents have gotten away with horrific illegality and abuses of power, such as FDR’s internment of Japanese-Americans in concentration camps, Woodrow Wilson’s massive violations of civil liberties, and—most recently—Obama’s starting two wars without congressional authorization, and Trump’s cruel family separation and travel ban policies.”

    You know, when you put it that way Trump doesn’t actually sound like a particularly bad president. That’s the problem with this argument. Maybe we would be better off shifting to a standard where we always impeach every president whenever they do something that abuses power. But that hasn’t been the standard in the past and, by historical standards using the examples you, yourself, have just outlined, Trump is far less deserving of removal than, say, FDR or Obama. If we’re going to move towards an “impeach more” approach to the presidency, we should probably decide to make an example of someone who starts an illegal war or throws Americans into internment camps instead of a president who threatens not to spend money that congress wanted to spend, then spends it the way congress mandated after all.

    1. And we know that’s all he did because his White House has been so transparent and he’s cooperated fully with all investigations.

  14. I do agree with Josh’s point that, under my approach a good many past presidents deserved impeachment and removal. That strikes me as a feature, not a bug.”

    Well, fine: Change the practice. Prospectively. Changing it now for actions that have already occurred, and never before would have been viewed as impeachable, is in effect changing the “law” retroactively.

    Put the NEXT President on notice that lax enforcement is over.

  15. “By contrast, the risk facing an impeached president is removal from a position of enormous power.”

    That isn’t the salient risk. The harm that is risked is the harm to the millions of people who voted for the person.

    1. Exactly. Long before the Ukraine affair (If you will), the Democrats were trying to prevent Trump from assuming the office and, after he did, to have him removed. You only need one hand to count the number of comments that mention the voters, and they are not mentioned at all by Mr. Somin. I didn’t vote for Trump, and would have preferred any other Republican candidate, but he certainly was the better choice compared to HRC, and is less of a threat to the Constitutional order than several of the current Democratic candidates.

  16. Ilya said: “Trump’s withholding of military aid from Ukraine in order to pressure them to help his reelection campaign also violated both the Constitution and federal criminal law”.

    Investigating corruption and doing it well will certainly be a feather in any president’s cap and therefore aid in his reelection.

    Is investigation corruption, per se, an impeachable offense and a violation of the Constitution? No.

    Is withholding military aid while seeking assurances that past corruption will be investigated and steps taken to prevent it in future itself an impeachable offense? No.

    I doubt very much that Ilya would disagree with either of the two above Q/A. So what he seems to be saying is that Investigating corruption is the right thing, but Trump did it for the wrong reason.

    Has Ilya convinced himself that he can see into minds of others and that he “knows” their one true motivation?

    1. That would be a much better argument if there were any evidence that President Trump was actually investigating corruption. Can you provide some?

      1. Says the guy who “knows” what the president was thinking when asking for the investigations.

        How do you “know” what you claim to “know” -it is one assumption on top of another.

        The Dems’ entire argument boils down to: Trump couldn’t possibly have had the public interest in mind. IOW, he is guilty because Dems say so.

  17. Abuse of power is an opinion, not a crime. If power was abused to the level of a crime, charge the President with a crime!

  18. This blog would be a lot better if the posters were prohibited from parroting DNC talking points.

Please to post comments

Michelle Carter released from prison early

The Supreme Court had denied cert in the texting suicide case

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Michelle Carter was released from prison yesterday for good behavior, several months ahead of the scheduled end of her 15-month sentence. I previously blogged about the case, in which Carter was convicted of involuntary manslaughter for encouraging her boyfriend to commit suicide, here, here, and here.

Last week, the Supreme Court (unfortunately, in my view) denied cert in the case.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Is there a point to this blog post? This is supposed to be a law blog, not a criminal case news aggregation site.

    1. “We write mostly about law and public policy, though we feel free to blog about whatever else strikes our fancy.”

      1. She’s not “blogging” about anything, she’s simply relaying a terse account of a news story, with ZERO commentary.

    2. Irina is fighting hard to decriminalize the right for women to drive people to suicide so the police can focus more attention on need to prosecute men who fibbed about their life stories as fullblown rapists.

  2. “her boyfriend ”

    He has a name.

    1. Indeed. Conrad Roy II. May God rest his soul.

  3. Reasonable minds can differ on the appropriate outcome in this case, but I’m not sure I see how this case presented a federal question at all.

    1. At least one of her defenses was based on the First Amendment.

      1. Yes, but that particular defense was pretty clearly meritless. There’s no serious question that states can criminalize the conduct here: the only substantial legal question was whether Massachusetts actually had or not.

  4. The framing of this as an “early” release is misleading (and this article is by no means alone in don’t so). She was credited for good time in accordance with the law and released precisely on the day the state was required to release her. Saying she was released early is to incorrectly suggest that someone exercised discretion to release her even though the state could lawfully hold her longer.

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Impeachment

Was Trump's Sin Acting "Like a Politician"?

A response to Josh Blackman's New York Times op-ed on the case against Trump (with updates)

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Does the impeachment and potential removal of President Trump threaten to punish routine political conduct due to partisan disagreement? My co-blogger Josh Blackman makes the case for this view in today's New York Times (and expanded upon in this post below).

Josh makes some very important points that highlight how some advocates for the President's impeachment and removal have oversold their claims and made careless arguments. His piece also makes a more careful and nuanced argument against impeachment than has been made by the President's defenders. I think Josh's piece underscores some of the practical consequences of the failure of House Democrats and their allies to more forthrightly attempt to engage those outside of their base in their effort as well. All that said, I strongly disagree with Josh's bottom line. While the risk of using impeachment to advance partisan political goals is a real threat, the case that President Trump's conduct justifies impeachment and removal remains standing.

The historical episodes Josh highlights make the point that Presidents routinely consider the political consequences of their decisions, including whether certain actions will benefit them politically, even when more weighty considerations are at hand. It is a mistake to resist these claims (or to pretend, as some Democratic partisans do, that weighty decisions made by recent Presidents were not influenced by political calculations). But in an effort to draw a parallel between such conduct by past Presidents and the conduct of President Trump, Josh and I part ways.

In his op-ed, Josh writes:

What separates an unconstitutional "abuse of power" from the valorized actions of Lincoln and Johnson? Not the president's motives. In each case, a president acted with an eye toward "personal political benefit." Rather, Congress's judgment about what is a "legitimate policy purpose" separates the acclaimed from the criticized. Preserving a unified nation during the Civil War? Check. Creating a vacancy so the first African-American can be appointed to the Supreme Court? Check. But asking a foreign leader to investigate potential corruption? Impeach.

This framing, in my view, engages in a bit of bait-and-switch, and thus obscures what is actually at issue. The charge against President Trump is not that he wanted an actual investigation of corruption in Ukraine (however misguided such a request may have been), but that he did not care about whether there was an investigation at all. As virtually all of the evidence in the record shows, what he asked for was the announcement of an investigation, and that he had no interest in combating actual corruption of any kind. This difference may seem small, but it is key – and Josh's argument only works if this distinction is obscured.

Central to the argument for impeachment and removal is that the President engaged in the sort of conduct that the founders identified as justifying including impeachment in the Constitution: Using the nation's foreign policy as a tool for personal benefit, and thereby betraying the public trust.

The announcement of an investigation into Burisma and the Bidens could benefit President Trump's personal political ambitions, yet there is no plausible argument – at least no plausible argument that I have seen or heard – that the mere announcement of an investigation could or would do anything to advance any legitimate anti-corruption agenda. Further, there is now ample evidence that those helping Trump push for the announcement of an investigation, such as Rudy Giuliani, were explicitly acting on behalf of Trump himself in his personal capacity, and not the office of the President, let alone the nation. If one disbelieves such evidence, and genuinely believes the President sought an actual investigation into actual corruption, that could be a reason to conclude that no impeachable offense occurred, but the evidence for this view is decidedly lacking.

If there is evidence that Trump was actually seeking a genuine investigation, and not merely an announcement, we have not seen it. Those who might be able to substantiate such a claim, such as Ambassador John Bolton or OMB Director Mick Mulvaney, have not been allowed to testify, and the Administration has resisted releasing documents or other materials that might support this characterization of events. The evidence we have, on the other hand, supports the claim that the President wanted a politically useful announcement, and did not care at all about corruption in Ukraine, actual or imagined. In other words, while one could argue that a request for an actual investigation would have been within the bounds of expected (if regrettable) behavior by an elected official, the evidence for such an interpretation is not in the record. And as the President has acknowledged, any as-yet-undisclosed evidence on this question is within the White House's control, but they have refused to let it come to light. That, in itself, is telling.

As I have made clear, I do not believe the request for an announcement of an investigation into the Bidens and Burisma in exchange for aid and other assistance is the only impeachable offense the President has committed. Among other things, the President's request that White House Counsel create false records so as to mislead investigators is no less impeachable than President Clinton's dishonest conduct of decades ago, yet the House did not highlight these other misdeeds. Insofar as one can argue that impeachment and removal should be based upon a pattern of conduct, and not a single event, this was an unforced error.

I also question many of the choices House Democrats have made throughout this process, from failing to openly acknowledge that early investigations were related to impeachment and submitting excessive and overbroad document requests, to overstating or exaggerating evidence of "Russian collusion" and other offenses and failing to build or present a cross-ideological argument for what constitutes impeachable conduct. (My co-blogger Keith Whittington would have made an excellent witness at that hearing.) These missteps may well matter politically and may unduly complicate what should be a rather straightforward argument. On that question, we'll have to let history be the judge.

All that said, it is a mistake to suggest that the President's conduct is business-as-usual or that impeachment represents an effort to criminalize political differences, and a mistake to suggest that all that's at issue is a misguided and potentially politically motivated request for an investigation. If all that were true, I might well agree with Josh's bottom line, but it's not and so I don't.

UPDATE: A reader posits the possibility that the reason President Trump focused on an announcement of an investigation is that such an announcement could make it more likely that Ukainian officials would follow through with a meaningful investigation. In effect, the announcement would function as a commitment measure and thus would be more valuable than a private assurance that an investigation would ensue. If there were any evidence in the record to support such an account, I might find it plausible, but there isn't. Nothing the White House has said or released supports such an account. Not only that, but those individuals who might be able to substantiate such a theory have been barred from providing testimony. So while I accept the point that there is a hypothetical legitimate rationale for the demand for a public announcement, such a rationale remains purely hypothetical.