The Volokh Conspiracy
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In a recent New York Times op ed, prominent conservative legal scholar and Federalist Society co-founder Steve Calabresi called for Donald Trump to be impeached and removed from office, due to his recent tweet advocating postponement of the 2020 presidential election:
I have voted Republican in every presidential election since 1980, including voting for Donald Trump in 2016. I wrote op-eds and a law review article protesting what I believe was an unconstitutional investigation by Robert Mueller. I also wrote an op-ed opposing President Trump's impeachment.
But I am frankly appalled by the president's recent tweet seeking to postpone the November election. Until recently, I had taken as political hyperbole the Democrats' assertion that President Trump is a fascist. But this latest tweet is fascistic and is itself grounds for the president's immediate impeachment again by the House of Representatives and his removal from office by the Senate.
First, I am happy to welcome Steve to the club of conservative and libertarian legal scholars who believe Trump deserves to be impeached and removed from office—a group that already includes several Volokh Conspiracy bloggers, such as Jonathan Adler, David Post, and myself.
I agree with Steve that the tweet is deeply troubling, and that the president has no authority to postpone the election. The latter is the virtual consensus view of constitutional law specialists. Co-blogger Michael Abramowicz has a good explanation of why.
At the same time, the tweet strikes me as a far less compelling justification for impeachment and removal than numerous previous actions by Trump. The Ukraine scandal (for which Trump was actually impeached, though eventually acquitted by the Senate) involved a serious attempt to usurp Congressional power, and a violation of federal criminal law. Trump's brutal family separation policy was both illegal and inflicted severe harm on thousands of innocent children and their families. More recently, Trump's deployment of DHS forces to Portland and elsewhere is both a violation of constitutional limits on federal power, and undermines civil liberties by using CBP units known for their brutality and disdain for due process, which has predictably resulted in serious violations of constitutional rights.
The tweet on postponing the election isn't even Trump's most reprehensible statement about the 2020 election itself. That dubious distinction goes to his earlier threat to illegally withhold federal funds from states that expand voting by mail. Unlike the postponement Tweet, that one actually threatened action. And the threat was made more credible by this administration's ongoing pattern of attempting to usurp Congress' spending power in order to coerce state and local governments into doing the president's bidding. That pattern is most evident in the administration's campaign against sanctuary cities, which has been repeatedly ruled illegal by numerous federal court decisions.
All of these actions are more of a threat to the constitutional order than the postponement tweet. Several have already resulted in grave violations of the Constitution, and severe harm to innocent people. In my view (like that of most constitutional law scholars), impeachment is justified even in some cases where the president has abused his power without violating the law, and perhaps also in cases (like this one) where he has merely implicitly threatened to do so. But the case for impeachment is much stronger when the president has in fact violated the Constitution (as in the Ukraine scandal, or has taken actions that inflict serious harm on innocent people (as with the family separation policy), or both (as with family separation and the DHS abuses in Portland).
If the election tweet were an isolated occurrence, I would be inclined to say that it does not justify impeachment, as it does not by itself violate the law, harm innocent people, or pose much of a threat to the constitutional system. But the better way to view it is as part of a pattern of abuses of power and subversion of constitutional constraints on the president, which includes the actions listed above, and more besides. Seen in that light, the Tweet adds to the case for impeachment, though in my view there was already more than sufficient justification.
As a practical matter, of course, it is highly unlikely that Trump will be impeached again before the election, and even more unlikely the GOP-controlled Senate will vote to remove him. No law professor—not even one as influential and (deservedly) widely respected as Steve Calabresi is likely to change that political dynamic.
The real significance of Steve's op ed is not that it will lead to a second Trump impeachment, but that it might influence the views of other conservative lawyers and intellectuals on Trump and his policies. If Trump is defeated in November, there will be a debate on the right about how much of Trump's legacy should be retained, and how much jettisoned. Those of us who believe this administration's ultra-expansive approach to executive power should be repudiated can use all the help we can get.
For the moment, of course, Steve Calabresi's condemnation of the administration is focused on this one particular statement. But perhaps he will come to see that it is part of a broader pattern, that includes many far more troubling usurpations and abuses of power.