Impeachment

Why Impeachment Should Proceed Even if it Cannot be Completed Until After Trump Leaves Office

The Constitution does not bar such proceedings. And the impeachment process could still serve the valuable purposes of deterring wrongdoing by future presidents and barring Trump from ever holding federal office again.

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In my last post, I highlighted the case for a swift impeachment and conviction of Trump, outlined by the unlikely alliance of famed conservative constitutional law scholar Michael Stokes Paulsen and prominent liberals Laurence Tribe and Joshua Matz. However, Senate Majority Leader Mitch McConnell has indicated that the Senate probably will not take up any impeachment voted by the House until after Trump's term ends on January 20.

In this post, I explain why an impeachment trial conducted after Trump leaves office would be both constitutional and serve valuable purposes.

I. The Constitutional Question

Nothing in the text of the Constitution bars impeaching and trying officials who have already left office. Article II, Section 4 of the Constitution indicates that "[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors." Article I, Section 3, Clause 7 says that "Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States." Notice that the latter is a penalty that can be applied even to an official who is no longer in office.

Michael Paulsen, a leading conservative legal scholar and academic expert on impeachment summarizes why it makes sense to interpret this text as allowing impeachment of former office-holders as well as current ones:

There is a fair argument that the Constitution would permit impeachment, conviction and disqualification from future office even of a former president, in order to impose the punishment of disqualification. Impeachment is the exclusive method for removing a president from office but nothing in the constitutional text literally limits impeachment to present officeholders. Moreover, it would seem almost absurd to permit a miscreant officeholder to frustrate completely the possibility of receiving the constitutionally contemplated punishment of disqualification from future office by quickly submitting a pre-emptive resignation, hoping to launch a new bid for office in the future. The impeachment power thus arguably extends to former officeholders.

As Paulsen notes, this argument is "contestable." But it nonetheless seems better than the opposite view, which would have the "almost absurd" consequences he describes. Michael Gerhardt, another leading expert on impeachment, similarly points out that "It certainly makes no sense for presidents who commit misconduct late in their terms, or perhaps not discovered until late in their terms, to be immune from the one process the Constitution allows for barring them from serving in any other federal office or from receiving any federal pensions."

This view is also backed by historical precedent. In 1876, President Grant's Secretary of War, William Belknap resigned to head off impeachment for corruption. But the House proceeded to impeach him anyway, and the Senate tried him. Ultimately, a majority of senators voted to convict, but not the necessary two-thirds supermajority.

Finally, the idea that former officials are subject to impeachment is backed by extensive original-meaning evidence, outlined by Brian Kalt in a thorough 2001 article that is probably the closest thing we have to an authoritative academic analysis of the issue.

I don't claim any of this resolves the issue beyond all doubt. But the arguments for the legality of this type of impeachment are strong. And, as a practical matter, it is unlikely that a court would ever invalidate such an impeachment, given  courts' historic reluctance to overrule Congress on matters related to impeachment. In Nixon v. United States (1993) (not to be confused with the famous 1974  "Nixon tapes" case of the same name), the Court even ruled that issues involving impeachment procedures are "political questions"  almost entirely beyond the reach of judicial review.

II. The Case for Doing it.

The fact that an impeachment after Trump leaves office would be constitutional doesn't necessarily mean Congress should actually do it. Some might ask: why bother? After all, Trump will be gone from the White House anyway. And impeachment  could turn out to be a distraction.

But there will still be two good reasons to proceed with impeachment, even after Trump leaves the White House on January 20. The first is barring him from holding any other federal office in the future.

While Trump's reputation has been seriously damaged by recent events, he still enjoys substantial popularity within the Republican Party. If not barred, he could potentially run for president in 2024 and win the nomination again. And, as we saw in 2016, a major-party nominee—no matter how flawed—almost always has a real chance of winning the general election, especially if his opponent has significant political liabilities of his or her own. We should not take the risk of allowing Trump to return to power and commit further crimes and abuses as bad or perhaps even worse than those he perpetrated in his first term.

Disqualification would also prevent Trump from causing harm by serving in other federal government positions, such as in the House or Senate, or by being appointed a cabinet member by a future president. It seems unlikely Trump would try for any of these types of positions. But better safe than sorry, when it comes to such matters.

Barring Trump from holding office in the future seems undemocratic. If the people want to elect Trump (or anyone else), why shouldn't they be allowed to do so? But, thanks to widespread ignorance, partisan bias, and other factors, voters' judgment often has serious flaws. The Framers of the Constitution took a highly skeptical view of pure majoritarian democracy, and they imposed many constraints on it. Impeachment—including the associated disqualification power—is one of them.

Conservatives who like to remind us that "we are a republic, not a democracy" should be especially wary of rejecting disqualification merely because it is a constraint on democracy. That constraint is a feature, not a bug.

The other reason to proceed with impeachment after Trump leaves office is to deter similar abuses of power by future presidents. As I have emphasized in previous writings about impeachment (here and here), too many presidents have gotten away with serious violations of the Constitution and gross abuses of power without suffering any consequences. That problem did not begin with Trump, by any means. But it is imperative that we take action to curb it.

If Trump suffers no consequences for inciting an attack on the Capitol and  pressuring officials to fraudulently reverse an election result, we can expect future presidents to imitate his example, if they think it might be advantageous. And perhaps even do worse.

It may seem unfair to make an example of Trump when several previous presidents have gotten away with violating the Constitution and otherwise abusing their power, without suffering any consequences. FDR got away with internment of Japanese-Americans in concentration camps, Woodrow Wilson engaged in  massive violations of civil liberties, and—most recently— Barack Obama's started two wars without the congressional authorization required by the Constitution.  And these are far from the only examples.

But the more lax we have been on such matters in the past, the more imperative it is to make up for lost time now. If we live in a neighborhood where criminals routinely get away with murder, the right way to deal with the next murderer we catch is not to let him go, but to impose a severe punishment, so as to show that the days of impunity for murderers are over. The same point applies here. We need to make an example of Trump in part precisely because we have been too soft on earlier presidential wrongdoing.

Finally, the idea that impeachment will be a distraction strikes me as a weak argument. Congress has broad power to structure an impeachment process as it wants. And an impeachment and trial focusing on events where the facts are clear and indisputable need not take more than a few days. It could even be done in one or two—still enough time for both sides to have several hours to present their arguments and evidence.

Lengthy procedures may be needed in a case where there are a lot of murky facts, or investigation is needed. But the facts of Trump's role in the Capitol assault and the effort to pressure Georgia officials are already on the public record, and evident for all to see.  In addition, extensive due process is less necessary in a case where the defendant is threatened only with removal from a position of power (or deprivation of the opportunity to occupy such a position in the future) than in one where he or she stands to lose fundamental human rights, such as the right to life, liberty, or property (at stake in most ordinary criminal and civil cases).

Even if impeachment does create some degree of distraction for Congress, the tradeoff is worth it. Few if any matters are more worthy of congressional attention than deterring wrongdoing by the holders of the most powerful office in the land.

As I have said before, there may be prudential reasons to avoid impeachment, if it seems likely to be counterproductive, because there is not sufficient bipartisan support for it. But subject to that important caveat, there is every reason to proceed with impeaching Trump again, even if the process cannot be completed until after his term ends.

 

 

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  1. Another false misuse of the law for lawfare. The Democrat lawyer does not want a tough competitor in 2024. They say, unify this country, then enrage 72 million supporters.

    These patriots are the same as the Hong Kong Pro-Democracy movement that took over the Parliament.

    It is impossible for the Democrat lawyer to see itself the way others see it, a vicious attack dog. Call protest insurrection. Imitate the Chinese Communist Party in response.

    1. It’s also counterproductive for Dems to impeach and ban Trump, the best gift they can give the GOP. It makes Trump a martyr and rallying cry while at the same time forcing the GOP to find a better Presidential candidate, and they’ll have four years to do it.

      Smartest move for the Democrats is to leave Trump in place, hanging around the GOP’s neck like the albatross, not knowing if they’ll be stuck with him running again in 2024, giving them no time to sort out a replacement.

      1. It’s also incendiary.

        If they’re serious about Wednesday being anything more than a drunken fratboy stunt, if they honestly believe it was an attempt to kidnap or kill them (and I will admit that the reports of the zip ties makes me uneasy), then impeaching Trump would be like mocking Mohammad.

        IF these crazies exist, this will bring them out of the woodwork — and they’re acting independently of Trump.

        So Pelosi is in the situation of trying to claim she’s half pregnant. If she’s genuinely worried about Trump instigating violence, she ought not be doing it herself…

        Pelosi reminds me so much of Richard Nixon that it is not funny.

        1. A violent heckler’s veto is a bad argument. One does not appease violent lunkheads.

          1. Unless they’re burning down buildings on behalf of a notionally Democratic cause. Then some people bail them out.

            Maybe that’s the kind of behavior we should focus on impeaching over as a higher priority.

            1. The left would love to ban private schooling so they can erase those memories from education.

            2. Not just some people. Kamala Harris !

          2. “One does not appease violent lunkheads.”

            Yet you supported such all summer. Weird.

            1. I’m pretty sure I did not support Ed last summer, either.

        2. Stupid concern troll is stupidly concerned.

        3. Not true. Trumpism is a cult of personality, not of policy. Banning Trump from office is the correct path. The nation needs to put this shit behind us not just put it off for another 4 years. Trump has some appointments in New York state as well last time I heard

          1. You are wise indeed. And impeaching Trump isn’t for political benefit or scoring points. It’s the right thing to do. Let it be incendiary. Let the Trumpist rabble threaten. Let there be 10,000 Timothy McVeighs as a result. Many of them have taken to posting on Reason lately because they have nowhere else to go with their threats and vitriol. But this cancer needs to be excised from the body politic.

          2. As they say, “There’s no fool like an old fool.” What next, wise idiots?
            If putting America First, as opposed to putting government, politicians, illegal aliens, banksters, crony capitalists, China, etc. first, is a “cult,” then so be it and count me in, I’ll take that kind of “cult” any day. Yes, President Trump is charismatic, but charisma is not necessarily bad, especially if that charisma is helping to promote policies which are putting America first. What irks those about President Trump is not his charisma; it’s that he voices what many Americans think and have thought for many years, i.e. that the political establishment and the bulk of the media are rotten to the core. That they just can’t allow, hence the non-stop witch hunts and scavenger hunts to find a crime that President Trump or his associates committed. Millions of our tax dollars have been spent in this wasteful expenditure and now to cap it off they keep on even to the extent of preventing him from ever running for office again, not only him but to warn others to never challenge the established cabal of anti-American, treasonous denizens of the DC cesspool. Yes, you are right, the nation does need a political laxative to rid the nation of the excrement, and that would be President Trump, not business as usual, because that business, as you said, should be put behind us. I would only add that it should be put behind us forever by hiring more strong nationalist leaders with Conservative values who put America and its citizens first. Now, report me to the PC police. I dare you.

      2. Concern troll is concerned.

    2. Whatever stick you use to beat someone can be used against you.

      And probably will be.

      Good gravy, people. Have some sense. Name me one time in all of human history where conflict escalation has ever made things better.

      1. Letting them get away with it just encourages them to do it again and with more violence next time now that they know they can get away with it.

    3. And the Trumphaters will learn another lesson the hard way. What goes around comes around. The anarco/fascist/communists may think they rule the roost, but I am urging my Senators and Representatives to stall ANY AND EVER ACTION by the China joe* regime. Especially his “cabinet” choices who are a who’s who of leftist haters and anti-freedom fascisti. The Trumphaters had 4 years of blocking every move President Trump made. Hopefully we can do the same for China joe* and his cabal.

      1. The same goes for any other group that thinks they can just march into Washington and take over. Go straight to jail, do not collect $200.

  2. In my opinion we have set too high of a bar for impeachment. Presidents and officials get away with way too much illegal acts. Nixon should have been impeached after he resigned, Clinton should have been convicted, and Trump should have been convicted. I am sure there are many other impeachable officials. I want presidents and other government officials to be careful about following the law and the constitution. After two or three presidents and a handful of cabinet secretaries get convicted by the Senate they will learn to behave themselves.

    1. Pretextual lawfare, nitpicking, and lawyer gotchas should be criminalized. Mueller was in insurrection in his attempt to reverse the election of 2016. He should have been arrested, tried for an hour, and shot in the head in the court basement on the spot. Impeachment is in that category of government oppression and tyranny.

      1. Mueller was doing his job that the DoJ hired him to do. He did not start the investigation nor was he out to get anyone. Also Trumpers should love Mueller because your narrative is that he exonerated Trump.

        1. No Mueller was bordering on a senile old man who had hired flunkies doing any real work. Did you see him testifying when he was unable to answer basic questions about the investigation.

        2. That was the problem; Mueller wasn’t doing ANYTHING. He let his staff run riot making up phony charges for which there was very little evidence.

          1. No, the Republicans Comey and McCabe were the problem—Obama’s two biggest mistakes were appointing highly respected Bush era Republicans, Gates and Comey, to top Cabinet posts. Pretty much all of the Bush era Republicans other than Colin Powell were grossly incompetent.

      2. Meuller did his job. I can’t wait for when they release the redacted portions from his report.

        1. That should be interesting. Also the grand jury testimony. I assume the new AG will have no problem with the release.

    2. Obama should have been impeached for his pen and a phone bluster, for losing several Supreme Court decisions 9-0 in trying to tell the Senate when they were not in session, for pontificating on a current legal case, and many other lies and misdemeanors.

      1. None of those are impeachable. But Obama attacking other countries without Congressional authorization is more persuasive.

        1. Anything and everything are impeachable. There are no restrictions.

          1. That’s MAGA thinking. No everything isn’t impeachable.

        2. I thought DACA was pretty impeachable, in as much as you had Obama on record saying he couldn’t constitutionally do it, before he did it. So there’s little question he knew he was violating the Constitution.

          1. Any congress can impeach but impeaching over DACA would have gotten them laughed out of both houses.

            1. Any Congresscritter, who laughed at the blatantly unconstitutional executive order, implementing a law, that the Senate had recently rejected, should have been impeached, along with 0blama.

        3. I do like the Obama administration’s legal argument in Libya – they said it isn’t a war if the other side can’t hit back, it’s just a logistics exercise in delivering (highly explosive) cargo by air.

        4. “None of those are impeachable.”

          Illegally making appointments [the effect of “trying to tell the Senate when they were not in session”] would be impeachable under the legal view of impeachment.

        5. None of those are impeachable.

          You clearly have no idea what “impeachable” means in this context.

        6. Droning American citizens without due process.

          Fuck him forever for that.

      2. Not to mention for his extra-judicial murders by drone and overthrowing the governments of other countries.

    3. How about Obama? Anything he should have been impeached for?

    4. Impeachment is not a legal process. It is a political one. It only takes place if the impeacher can gain politically. Getting 2/3 of the Senate to convict has never happened and never will. Although not convicted by the Senate Clinton did have to answer to the legal charges after leaving office.

      1. As I expect will President Trump. There are a number of state and civil litigation awaiting his attention.

  3. The OP said: “We should not take the risk of allowing Trump to return to power and commit further crimes and abuses as bad or perhaps even worse than those he perpetrated in his first term.”

    Pray tell, what were those crimes committed in Trump’s first term?

    Russian Collusion?
    Investigation of corruption in Ukraine?
    Giving a speech?

    1. Getting elected?

    2. Exactly this. No crimes, no abuses, except in the mind of crazed opponents of Trump, and in the false narrative of the Democratic party and the progressive movement.

      1. Trump importuned a mob to try to thwart one of the core tenets of democracy — the peaceful transfer of power following an election. If that is not impeachable conduct, what is?

        1. Your interpretation of what the president said is unconnected to reality.
          Seek help, though it is becoming clear that TDS may be untreatable.
          It also seems to be spreading.

  4. Somin is an emotional, upset lawyer.

    The rule of law is to limit human aggressiveness, so we can live our lives. The alternative is to spend all our time on physical self defense and survival. Democrats are very aggressive and nasty. They want to prosecute the loser of an election.

    I invite the lawyers here to move to China or to Venezuela, where they will fit in better.

    Other primates are 100 times more aggressive than humans. Our relative peacefulness is an ingredient of our success. Democrats should try to control themselves better. Republicans have 65 million gun owners of 300 million guns. The rhetoric should be toned down.

  5. This is incredibly unseemly, this rush to impeach and convict in such a short time frame. Usually legal beagles fret about defendants not getting a speedy trial and being held in limbo, or even a real jail, for years.

    What the heck happened to due process?

    You guys have lost your marbles. TDS is the clear cause. You aren’t rushing to convict the actual malfeasants, just the guy you blame for making mean tweets. You admit nothing he said violated the First Amendment; yet you still rush to convict him as quickly as possible.

    Some of you have posted clear condemnations of Communism. Yet you say almost nothing about the Marxist leaders and founders of BLM, or the thousands of Marxists in academia, because that would be a clear violation of the First Amendment.

    Why Trump, for something which is not criminal? TDS is the only answer.

    Apple and Google ban Parler et al. Amazon deplatforms Parler et al. VISA and other credit card companies will no longer handle funds for Parler et al.

    Does none of this bother you? It’s far more damaging to the American republic than Trump’s mean tweets, and he’s going to be gone in ten days, while all those Marxists remain indoctrinating students, and those huge tech companies conspire in censorship.

    TDS is the only explanation. You are off the rails in your TDS.

    1. You need to get up to speed. Clyburn has floated the idea and Pelosi seems agreeable to it to wait 100 days to send any articles of impeachment from the House to the Senate. They are claiming Biden needs a hundred days to get his ass in gear in a new administration and any impeachment would tie up any votes on his nominations and bills he wants passed.

    2. Parler may actually have a RICO action, this may be big tech’s undoing.

      1. Who are they going to get to pursue it? Their law firm just dropped them.

        1. That should be a bar ethics issue — if the bar is going to restrict entry, it should mandate representation. The medical profession does this, a MD can’t drop you until you have a new MD, that’s a rule.

          That said, Rebekkah Mercer is behind Parlar, she has a lot of money, and lawyers like money.

          1. Yeah, Trump has a lot of money, too. Doesn’t mean that losing your law firm right at the start of litigation isn’t a serious handicap.

            What’s next in this deplatforming formula? Because if the current list isn’t enough to get the job done, you know they’re going to double down.

          2. “The medical profession does this, a MD can’t drop you until you have a new MD, that’s a rule.”

            No, it is not.

            1. Yes, it is, a doctor cannot dismiss a patient who is under ongoing care, and for several other reasons as well.

              1. And yet your remark is still untrue.

                I had a Doctor who decided to go into ’boutique’ care and literally dropped all of his patients who didn’t want to pay for that kind of service.

                There was nothing illegal about it, and everyone who had him as a PCP had to find a different one. Thus the blanket statement offered by Ed is (as usual) untrue.

                1. He would have had to continue with any ongoing cases until it was safe to cease.
                  Lawyers are bound to more stringent rules, though I guess they can withdraw representation, before any case is declared.

      2. Big tech companies need to be treated as common carriers.

      3. Oh my god, STFU, Dr. Ed. No, they do not “actually have a RICO action.”

        1. From: https://www.britannica.com/topic/Racketeer-Influenced-and-Corrupt-Organizations-Act
          “Alongside criminal actions, RICO permits private plaintiffs and the government to seek redress in a civil action. ” “…the Supreme Court reversed the appellate decision, considerably broadening RICO’s scope and initiating a plethora of civil and criminal suits involving legitimate companies. Following this decision, RICO was increasingly used by the government to prosecute white-collar and corporate crimes, as well as unfair trade practices, committed by legitimate companies not associated with organized-crime groups.

          1. That’s great. Next time I want to perform open heart surgery, develop an AI competent enough to make self-driving cars for the masses, or litigate a RICO case, I will go to britannica.com and boldface a random sentence.

            I could try to teach you about the concept of predicate acts and a pattern of racketeering activity, but if you thought that link was helpful, it would be a waste of my time. Instead, I will point you to this explanation for laypeople:

            It’s never RICO.

    3. If you can’t get why people are upset by insurgents invading the capitol, you may be the deranged one.

      1. I can get upset by it, but “Hey, let’s abolish due process and ramp up censorship!” is not my reflex response to being upset.

        There were about a quarter million protesters in D.C. that day. Maybe a fiftieth of a percent of them entered the Capitol building, and maybe as many as a half dozen did anything violent.

        Contrast this with treatment of last year’s riots, where standing right next to somebody throwing Molotov cocktails at an occupied building was defended as peaceful protest. The double standard is palpable.

        I want everybody who entered those buildings illegally identified and prosecuted, but I’m not into guilt by association, guilt by assertion, and I am absolutely not a fan of censorship. Prosecute people who broke the law.

        Not people who just share their politics.

        1. This is just the masks coming off and is probably a good thing in the long run. Conservatives need to move from complaining about lefties and lefty institutions being mean to them and begin to develop alternatives. We should never buy anything from a leftist company; we should get our kids out of public schools right now; we should stop voting for Republican uniparty candidates; and we should all recognize that these people are the enemy. They are not just fellow Americans with a different point of view about things. They want to, as Molly Godiva here says, cleanse the country of the filth. Well we know what the “filth” is and we should know what cleansing is all about.

          1. That’s been the problem with conservative all along. They play too nice and don’t recognize the left for what it is.

            It’s time to start becoming the monsters they accuse us of being.

          2. I agree you should do all those things and convince as many conservatives as possible to go along with your plan. I am sure all of those actions will right the ship. I am sure that your cleansing will be seen by all right thinking people as an appropriate response. The fact that the US population will drop by several million is just a unfortunate effect.

            1. You seem to have trouble reading. I’m not the one who wants to do the “cleansing.”

          3. The filth that I want cleansed is those who violently rise up in an attempt to destroy this country.

            1. “filth that I want cleansed ”

              Nazi talk.

              1. Nazis called people filth based on who they were, I am calling them filth based on their actions. Huge difference.

                1. You and your ilk have been cheerleading forces for years that are destroying our country from within. I’m willing to believe that you are just one of the useful idiots but elimination rhetoric tends to illuminate some ugly intentions. You really should change your name because you aren’t getting past that.

          4. What the hell does “conservative” even mean any more? Trump—Trump!—is a conservative? Mr I want to send $2000 more to people at the end just so they like me and will support my voracious ego and contribute to my “election fraud” slush fund to help me defray the coming $1 bbbbillion plus I owe to Deutsche Bank?

      2. It should be more upsetting that blacks can burn and riot, and are given free shit in response.

        When will white America wake up? If you’re representative, not until you’re the next victim.

        1. Aww. You’re a victim.:( And storming the Capitol to overthrow an election and hog-tie Congress, hang Mike Pence, etc, is *just like* throwing a brick through a store front on 17th and Market.

          I’ve managed just fine (and then some) being white.

          Dumbass.

      3. If you can’t get why people are upset by insurgents invading the capitol…

        Color me shocked that your only argument is of the straw man variety.

        1. You don’t think insurgents invaded the capitol?

          1. The fact that most left fairly peacefully within a couple hours would say no.

            That does not excuse violence and destruction of property or any assaults. Insurgents DID take a block of Seattle and hold it for a couple weeks and there was talk of doing the same in DC and Nashville.

            Reasonable?

    4. And it is only going to get worse. TDS will be followed by TWS – Trump Withdrawal Syndrome – when they don’t have Trump to hate.

  6. Ilya you seem to be a little behind the curve so let me help you get up to speed. Clyburn is floating the idea that Biden needs a hundred days free of any trial for impeachment so he can get things off the ground and Pelosi seems to be backing off on moving quickly and agreeing with him. So Clyburn claims it would be a good idea for the House to wait a hundred days to sent articles of impeachment to the Senate.

    While some wild eyed dems have made the silly case that the House could vote for impeachment in the morning and the Senate could convict that afternoon anyone with an IQ above room temperature knows that is not just silly it will never happen.

    The last impeachment trial in the Senate lasted three months. While I do sorta agree that the SC does not like to stick it’s nose in the business of the legislature I have little doubt there would be a gaggle of lawyers who would insist the SC weigh in on the question of impeachment of a president after he has left office.

    I would also note that the Belknap trial for impeachment failed to convict as you noted. I would bet dollars to donuts that the same thing would happen in a trial to impeach Trump. The dems are currently begging pubs in the House to vote for impeachment and by all indications any House vote for impeachment will be a bare majority with few defections by the pubs.

    So the real question is how likely is it for a 2/3 majority in the Senate to convict Trump in three plus months. I have little doubt COVID-19 and a dumpster fire economy will have the public in a worse mood than they are in now. There are plenty of dems (and more members of the public) that think the House and Senate have more important things to do than waste time impeaching when there is really no hope for conviction in a trial.

    As a rule I don’t agree with much of what Ilya posts but I am interested to hear his opinion on how realistic he thinks it is that the Senate will convict Trump. If He answers the chances are ‘slim to none’ he may show he has some grasp of reality; but any other answer and I will lose the small amount of respect I have for him.

    1. Ask him if Reagan can be impeached. So what if he’s been dead for 16 years…

    2. Impeachment proceedings aren’t normally this clear cut. There are no questions of fact to decide, or any tricky points of law to argue over it. It’s simply a case of ‘this happened, are we going to impeach Trump ?
      or ignore it?’, and could be through both houses in an hour, let alone a day, if the political will is sufficient.

      1. There are no questions of fact to decide, or any tricky points of law to argue over it. It’s simply a case of ‘this happened

        Thank heavens we don’t have to go through any of those pesky due process steps that we have to for much more serious offenses like jaywalking or littering. Just throw out your version of things, and put it to a vote!

        1. No one is saying that Trump should not be afforded the opportunity to present a defense, however indefensible his conduct may be. The chance to contest the charges through cross-examination, to be represented by counsel and to present evidence of his own should be sufficient to satisfy due process.

          1. Oh, my fault. That appeared to my admittedly simple mind to be exactly what OP was saying, via the words “[t]here are no questions of fact to decide” &c (i.e., under the “right” circumstances, trial by media is indeed sufficient).

    3. The last impeachment trial in the Senate lasted three months.

      No, it lasted three weeks. And that’s if you start the count from when the articles of impeachment were sent over (Jan. 15), rather than from when the senate began its proceedings. (Jan. 21) If you only count the actual senate proceedings, it was two weeks.

  7. I cannot wait until Jan 20th when Ilya cries out for the impeachment of new president and VP on charges of corruption and inciting violence respectively.

    Joe Biden claims he was just doing his job in Ukraine when delivering his infamous quid pro quo. but that begs a questions or two:

    Was it the policy of the State Department to aid and abet corruption in Ukraine?
    More to the point, was it the policy of the State Department to aid Zlochevsky in his bid to escape justice?

    Joe Biden’s claim that he was just doing his job is undercut by what occurred after Joe had the prosecutor fired. Hunter’s boss scored a sham trial that resulted in a slap on the wrist, no criminal conviction, and no clawing back of his ill gotten extraction permits. Did that further the policy of the state department? Hardly, though it did further the Biden family interests.

    VP elect Harris is on camera supporting the demonstrations and stating that they should and will continue even after the election. Moreover she has provided funds to bail out those arrested. That is far more incitement than Trump’s rather tepid speech.

    So how about it Ilya, will we hear from you say by 2:00PM EST on the 20th with your post demanding immediate impeachment of the Biden/Harris team?

    1. You might want to check a dictionary. The words you’re using don’t mean what you think they do.

  8. Thanks Mike Hansberry! You could’ve saved us 6 PP and just a simple link to Mewsmax.

    1. BMO,
      Are you one of Ilya’s voters whose judgment often has serious flaws due to “ignorance, partisan bias, and other factors?”

      When you are partaking in CNN’s latest asinine analysis, do you never ask yourself “gee self, who benefitted” – as with Biden’s actions in Ukraine? Asking who benefitted is one of the most basic questions any thinking person or reporter ought to ask, but CNN won’t ask it. And their brain dead viewers do not believe anything that CNN doesn’t “fact check.”

      Regarding VP elect Harris, even Snopes cannot deny it.
      https://www.snopes.com/fact-check/kamala-harris-protests/

      1. Harriss was perhaps the most vociferous during the debates in creative ways to hurt Internet giants if they don’t censor harrassment (and remember to start with our political opponents.)

        The ease with which those companies cave, blurbing out meme cover stories, is filthy and disgusting.

        This was all prior to last week.

  9. Ilya, you USED TO BE sane; what happened?

    Trump has done NOTHING to warrant impeachment, while Botox Nancy certainly has – SEVERAL times. The fake dossier, the spying on the president, allowing Antifa/BLM thugs to run riot in the streets of several dozen cities.

    1. A classic TDS case. These people are outrageously offended by Trump’s manner of speaking his mind, what I call the most transparent and honest President in history, in the sense that there is no doubt what Trump means and wants, as compared to all other politicians, who waffle and prevaricate and use so many fancy words to say nothing of substance. They can’t stand his directness and his fight for what he wants.

      Trump fought for his stupid wall, over and over. Obama campaigned for closing gitmo, brought it up once, and dropped it like a hot potato.

      Trump’s tweets are what piss people off, far more than his substance. he reduced wars, somewhat, at least not starting any new ones; he cut income and business taxes but raised tariffs and was happy to go along with Dem spending; yet this same author said one reason for voting for Biden was Trump spent too much. It’s all after-the-decision justification because they can’t admit just thinking Trump is rude and crude, lewd and loud.

      1. “…what I call the most transparent and honest President in history”

        And that is just one reason why we consider you to be a delusional fuckwit.

  10. Show me on the doll where Trump touched you

    1. Ooch, that’s harsh.

  11. I have a question. If we punish Trump can we punish the entirety of the Dem party and a good chunk of the media as well? I mean if Trump saying the 2020 election was stolen and we should protest it is incitement surely the Dems building their entire platform on the idea that yt is conspiring to keep x/y/z down and tons of things including the 2016 election was stolen and we should protest that and to go even further than Trump did by openly supporting the violence and bailing out rioters is incitement too no?

    1. No, that’s different because (D). Also because the Democrats have a majority in the House and they would never vote to punish one of their own.

      1. Or maybe it’s different because Trump’s supporters actually attacked the Capitol?

        I mean, seriously, the level of delusion on display here is quite dumbfounding.

        1. And Biden voters didn’t attack all those cities, where arson and looting became evening pastimes?
          P.S. Trump didn’t incite anything, that was on the heads of those actually involved.

  12. Ilya and even Biden/Harris are mere employees of the tech billionaire owners of the media and of the Democrat Party. They are fungible nothings. I do not bother criticizing them.

    I would like to see these tech billionaires live as Saddam Hussein did, not sleeping in the same place two nights in a row, and cooking rice in his underwear.

  13. The Constitution also doesn’t say that people named Ilya can’t be deported. That’s how asinine your argument is…

    1. Pretty much.

      The Constitution says you can impeach Presidents. On January 21st, Trump won’t be one. That seems pretty definative.

      Inconvenient? Sure. Doesn’t mean it isn’t clear.

      Oh, wait: I forgot. Ilya is a living constitutionalist now. He judges the meaning of the Constitution by what would be a good idea, not what the words say.

      1. “The Constitution says you can impeach Presidents. On January 21st, Trump won’t be one. That seems pretty definative.”

        No, it does not. Amazingly the text was even provided for you in Ilya’s article, and you still fucked up.

  14. Ilya, why can’t Obama be impeached in 2023?

    Seriously, 100 days, 7 years, there’s no statute of limitation specified in the Constitution so why not impeach him too.

    That’s how asinine your proposal is — it reminds me of when the British dug up Oliver Cromwell’s body two years after his death and executed a corpse.

    So let’s impeach FDR — so what if he’s been dead for 75 years. The Constitution doesn’t say we can’t….

    1. If there’s ever been an argument for retroactively stripping immigrants of citizenship, not for treason or misrepresentation on the application, but just for being an all around piece of shit, Ilya is that argument.

    2. Why limit yourself to such modest examples Ed? Let’s impeach Andrew Jackson! And while we’re at it, impeach John Adams for the AIien and Sedition Acts, and Thomas Jefferson for the Embargo Act. It might be hard to find witnesses, but what the heck – impeachment is not a criminal trial after all.

    3. Yup. Its a proposal that flies in the face of the text of the Constitution.

      You cannot impeach or convict a person who has left office.

      1. Of course someone who has left office can be impeached and tried. Upon conviction, the former office holder is subject to disqualification to hold future federal office, per the express text of the constitution.

        1. “…Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States”
          It doesn’t say “or”. You can’t use the “and” unless what comes before is also done.
          If the at-the-time former president can’t have the first part imposed, then the second can’t be added.

          1. I love really stupid arguments by people who don’t understand English, logic, or law.

            Statute: “Punishment for violating this law against fraud shall not exceed 24 months in prison and a $500,000 fine.”

            Judge: “Having been found guilty, I sentence you to pay a fine of $500,000.”

            Defendant: “You can’t do that! The law says ‘and’! You have to sentence me to prison, too!”

  15. So this is saying that the plain wording of the Constitution should be ignored and some “historical context” should replace it?

    Nothing in the text of the Constitution bars impeaching and trying officials who have already left office. Article II, Section 4 of the Constitution indicates that “[t]he President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Article I, Section 3, Clause 7 says that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.” Notice that the latter is a penalty that can be applied even to an official who is no longer in office.

    The last sentence is just nonsense from reading the text (under a “living Constitution” approach that “those in power get to interpret the Constitution as they see fit to adapt to the times”, it’s accurate of course).

    The Senate is only empowered to “convict” “”[t]he President, Vice President and all civil Officers of the United States” – not former Presidents, former Vice Presidents and formercivil Officers of the United States. The Senate passes “judgement” in cases of impeachment and that judgement may include a bar on holding “any Office of honor, Trust or Profit under the United States” — but they clearly are not empowered to pass judgement on former Presidents etc. so they can’t pass judgement on either removal from office (a moot point anyway) or barring from holding a future “office of trust”.

    The text is clear and when Biden takes the oath, impeachment and conviction of Trump are off the table.

    If the Republicans get a super majority of Congress in 2026 can they really go back and impeach, and bar from holding future office, Harris if she doesn’t win in 2024 just to remove her as a political threat in 2028? Or, maybe Obama (just to make a point and squash the dreams of some at DailyKos who were pushing him as a Supreme Court Justice — something he wouldn’t want and isn’t qualified for). Or, Carter (just to make a point). Or maybe some former cabinet officers that they fear may run for President or Vice President or be renominated to a cabinet office or federal judicial position in the future?

    The impeachment of Trump would clearly be a political act with absolutely no practical purpose but to attempt (if the President actually is an “Office of honor, Trust or Profit under the United States”) to prevent the voters from selecting him as their President in 2024 (which just isn’t going to happen anyway — do the Democrats really think their bench is so shallow they can’t find a candidate to beat Trump like a drum in 2024?). That’s not a good look for Democrats who claim they want the “voters voice to be heard” – even to the point of removing the safety rails of the Electoral College.

    1. I can see the argument on both sides. If the House votes to impeach on the 19th, Trump is still President at that time, so he’s subject to impeachment. That the Senate didn’t vote on whether to convict until after he left office is just a technicality.

      I suppose arguably they could even save time and just have the senate vote a second time on the Ukraine impeachment; Double jeopardy doesn’t apply to impeachment, after all.

      This is all crazy, though. Ilya just starts from the unshakable conviction that Trump is guilty, and proceeds from there. He’s not even open to the possibility of Trump not being guilty as hell.

      1. If a defendant dies during trial, can he still be convicted?
        How is trying a non-president any different?

        The other thing people forget is that Trump was a drogue anchor, holding back crazier elements now loose. Reportedly there was a blackout in Italy because the Pope was involved in rigging the election and Trump signed the Insurrection Act on Saturday.

        I am starting to get really worried about Inauguration Day.

        1. I’m just glad I didn’t go to that rally on the 6th; Doing so had crossed my mind.

          I’m worried about inauguration day, too. It wasn’t considered any big deal when the Democrats rioted at Trump’s inauguration, but Biden might invoke the insurrection act if any cars get set fire at HIS inauguration.

          1. What happened to Trump is what happened to Michelle Bachmann — getting in trouble because he relied on incompetent staff.

            You do NOT send a group 1.2 miles down a street without your people (and preferably a police presence) leading the group. None of his people could have told him that?

            1. Trump has often suffered from a lack of practical experience in politics, not having come up from the bottom, and a lack of good people, due to the party establishment being hostile.

              He could have made it up by getting help from interest groups that are forced to operate outside the party, but, again, lack of practical experience in politics.

              1. Once again, Brett suffers from the delusion that the party establishment is hostile, when they have been complete lapdogs to Trump from the moment he secured the nomination.

                1. David Nieporent, you really need to get that blindness looked at.
                  The GOP establishment was almost as hostile to Donald Trump, from the very beginning, as were the LieCheatSteal party operatives.

        2. There is nothing to worry about for Inauguration Day. The bad platforms have been de-plaformed, right? Even if most of the organization for the protests on the 6th was on Facebook, suppressing speech by some groups means they have been de-radicalized, right?

          1. Can you imagine what they’d be saying if the Nashville nut hadn’t been an aging hippie who hated cops???

        3. The post describes the difference. Someone not dead can run again.

          I would like to point out the Democrats stand against term limits for the surface reason The People should be able to elect those who effect their desires over and over and over again.

          Just saying.

      2. Since the crux of the indictment seems to be that Trump incited his supporters to “keep fighting” I wonder how many politicians and activists have urged their supporters to “keep fighting” or “fight racism” or “fight for defunding the police” or “fight fascism” or “fight socialism” or “fight communism” followed by an outbreak of violence?

  16. Lawrence Tribe has a red eye. Leslie Stahl has a red eye. Red eye, the sign of the disloyal Democrat. Pelosi has a head tremor, and is calling Trump disturbed. That is from the KGB Handbook, to call anyone dissenting from the socialist agenda mentally ill.

    I understand her anger. If someone’s friends chased me, and wanted to kick my ass, I would be scared and angry too. Biden needs to ask her to get treated for anxiety, and to calm down, on policy grounds, to unify the country. Objectively, they were protesters, not insurrectionists. They did not set fire to the place, as they easily could have. I felt the same way she did, when Democrats burned down Philadelphia. I felt the same way when Democrat Governors burned down our economy to defeat the economic achievements of Trump.

  17. When neo-Marxists disrupt and chase conservative speakers, Pelosi, should have them investigated for insurrection. The Democrat cannot suborn disruption of conservatives and then prosecute conservative when they imitate.

  18. Boy, there are definitely a lot of comments. I’d have to mostly agree with Ilya. The unfortunate part about impeachment, is political parties see it as a stain on their party, rather than a deserved punishment. And this leads them to decide not to convict, or at least, I can see the Senate deciding that in the end, Trump is no longer in power, and therefore to help allow the country to ‘heal’, not to convict.

    But another good reason to impeach now, would be to suspend his presidential powers. The 25th Amendment could be invoked, but why not impeach and suspend his powers, which would be faster, and not involve a back and forth? I can only assume it’s some sort of political refrain for fear of blow back. But if house members are promoting the idea that they swore an oath to Defend the constitution, this should have already been done.

    Page 494 of The Debates in the Several States Convention (VOL III) states:

    “There is one security in this case to which the gentleman (Mr. Mason) may not have adverted: if the President be connected, in any suspicious manner, with any person, and there be grounds to believe he will shelter him, the House of Representatives can impeach him; they can remove him if found guilty; they can suspend him when suspected, and the power will devolve on the Vice-President. Should he be suspected, also, he may likewise be suspended till he be impeached and removed, and the legislature may make a temporary appointment. This is a great security.”

    1. What would have been the textual and procedural basis for suspending the President? Or was the argument you quoted simply in error?

      It is, indeed, unfortunate that Democrats treat impeachment as a stain upon a party rather than as a deserved punishment. But they’ve been doing that for more than 20 years now.

      1. Are we allowed to use links?
        Page 494 of The Debates in the Several States Convention (VOL III) states: https://t.co/2eY2LGT0fy?amp=1

        I would assume if we impeach a judge for abuse of power (taking bribes in cases) that he would find himself suspended (via impeachment) until the Senate decides. Seems logical that the impeachment power would exist in order to both stop, and prevent further abuses of power if necessary. Even police officers are suspended pending an investigation.

        1. A Federal Judge can be investigated and disciplined by a Judicial Council, something not available for the President or Vice President. The President can remove officers below him.

    2. Mason’s view was not adopted. There is no suspension provision in the impeachment clause.

      Leaving Trump aside if possible, do you think it wise to have such a power in one house only? What if the VP dies, then the House could suspend the president so its Speaker is acting president.

      1. That wasn’t Mason’s Statement. That was James Madison who stated it could be and should be done.
        Ultimately stating that if the house is afraid he will abuse his powers, then they can impeach and suspend the President, whose powers devolve upon the VP. If the VP is also suspected to abuse or pardon, his powers can also be suspended until he is impeached and removed.

        Same link above.. but safer looking link.
        https://www.google.com/books/edition/The_Debates_in_the_Several_State_Convent/osbZAAAAMAAJ?hl=en&gbpv=1&dq=%22suspend%20him%20when%20suspected%2C%20and%20the%20power%20will%20devolve%20on%20the%20Vice-President%22&pg=PA494&printsec=frontcover&bsq=%22suspend%20him%20when%20suspected%2C%20and%20the%20power%20will%20devolve%20on%20the%20Vice-President%22

  19. Wow. I guess Gresham’s law applies to blog comments too…

    1. Don’t be too hard on yourself. I doubt that your idiocy has driven out any good comments.

  20. Ilya is blocking dissenting comments, again.

    1. Astoundingly, you have no evidence for your bullshit.

      Wait, no – I checked the historical records of your posts. You never have evidence for anything you rattle out of your Apple II programming.

  21. Ilya, take a look at what is happening to Parler.

    Google and Apple demand that Parler engage in censorship, then kick them off the app stores.

    Amazon cuts off their web hosting.

    Visa and Mastercard will not process financial transactions for them anymore.

    And their law firm dropped them as a client.

    All in the space of a few days, and Parler wasn’t even used to coordinate what went down in D.C., that was Facebook!

    You make a big deal of being from the USSR, and you can’t see a communist revolution starting right in front of your face? Are you really that comfortable with the role of useful idiot?

    1. Parler has a very rich young lady behind it and money is power.

      But there is an interesting ethical issue about their law firm dropping them — a MD can’t do that without finding a new MD to assume the duty.

      1. Money isn’t power if you can’t spend it.

        Anyway, more and more I’m thinking the fundamental problem is that the internet went wrong by adopting this server model for services.

        It’s understandable that companies would want to do things that way; Server models route key functionality through the company’s own assets, allowing them the capacity to exploit customer data, and to charge rent. But they also represent choke points where information flows can be censored.

        We really need to abandon the server model in favor of peer to peer. Ideally with end to end encryption, too. Basically, we need the tools a democratic resistance in a totalitarian country needs, because that’s what the US is on its way to becoming, and frighteningly fast.

        1. Can you imagine what they’d be saying if the Nashville nut hadn’t been an aging hippie who hated cops???

      2. But there is an interesting ethical issue about their law firm dropping them — a MD can’t do that without finding a new MD to assume the duty.

        That is from Dr. Ed and so, of course, not true. And what do the requirements for MDs have to do with lawyers anyway?

    2. As usual, your list of ‘facts’ includes emotional allegations inconsistent with actual reality.

      1. As usual, your list of ‘facts’ includes emotional allegations inconsistent with actual reality.

        Which of the things he listed are you asserting are without factual basis?

  22. Perhaps we should impeach Somin from his position as professor.

    Obviously the guy is an idiot.

  23. But the more lax we have been on such matters in the past, the more imperative it is to make up for lost time now.

    And the less restrained we become about using impeachment, the more likely it is to be abused in order to prevent the out-of-power party’s candidates from being permitted to run for office. Can’t imagine a ‘banana republic’ tactic like that could possibly become commonplace in the U.S.? Lol.

    On the other hand, it sound like the law is not clear that impeaching Trump actually would bar him from running again. Can you imagine the potential for protests/riots following a Supreme Court decision on that issue?

    And does Biden really want his inauguration to be page 3 material?

    1. Impeachment permits disqualification from holding office, it’s not automatic. It has to be specified in the bill of impeachment.

      That’s why Alcee Hastings could run for Congress after being impeached as a judge: His bill of impeachment only mentioned removal from office.

      All the bills of impeachment I’ve seen against Trump have specified removal from office AND disqualification from future offices. So conviction WOULD have that effect.

      I don’t think you could get a conviction of Trump out of the full Senate, but, the full Senate isn’t really required here, is it? It’s 2/3 of the Senators present and voting. I could see the Democrats coordinating things to arrange for a bar quorum with most of the Democratic Senators present, and maybe a handful of Republicans, and then convicting Trump on a straight party line vote.

  24. Ilya Somin and Arnold Schwarzenegger demonstrate how immigrants can contribute greatly to America with a fierce advocacy of our national ideals and interest.

    Other immigrants, however, abandon their usual (some would say incessant) garrulousness and retreat to cowardly silence with respect to insurrection, dangerously unpatriotic nonsense, and other Republican-conservative misfires,

  25. I don’t think it’s quite as absurd as Ilya suggests for a target of impeachment to get away from impeachment by resigning (or leaving office before the impeachment can proceed). The removal from office seems to be the main thing for which impeachment was created. I’m not saying that this demonstrates definitively that impeachment cannot happen after someone leaves office, but it strikes me as one point against doing so.

    1. Nixon was on his way to impeachment and likely conviction.
      He resigned and the process stopped.
      Ford pardoned him, but a presidential pardon doesn’t apply to impeachment.
      That’s the precedent against what Somin says shouldn’t happen.
      Further proceedings for criminal conduct can be pursued, once removed from office, or resignation, but the Holy Grail for the communists is preventing Trump from getting elected, again, after Senile Joe, and heels-up Harris botch another LieCheatSteal presidency.

  26. Great, we can finally impeach Obama for illegal wars, lying about health insurance and for giving money to a terrorist state.

    1. Go for it. Impeach all the presidents and vice-presidents for all I care. That way you’d end up with a parliamentary system, which would much improve the health of the US democracy.

      1. Since this is allegedly a law blog, I would suggest that the USA is (for now) a republic, not a democracy.

  27. “If the people want to elect Trump (or anyone else), why shouldn’t they be allowed to do so? But, thanks to widespread ignorance, partisan bias, and other factors, voters’ judgment often has serious flaws. ”

    I remember when Reason was a libertarian outlet. I miss those days.

    1. So does Artie Ray Lee Wayne Jim-Bob Kirkland.

    2. Libertarians understand that voting is an exercise of power over others, which is why they are not fundamentally opposed to constraining it in various ways.

  28. Apparently, all the kangaroos that escaped the fires in Australia moved to the U.S., and became Democrats, and now want to use their courts against their enemies.

  29. A friend reminded me that Prof. Volokh announced something about Parler — which my friend describes as ‘a place you can get the Volokh stuff and scheduling notices for patriot posses fixin’ to tase and zip-tie those socialists and commies in Congress’ — but says now he can’t find it.

    Any updates?

    Thanks.

    (I don’t usually help Artie Ray with this stuff — he got banned by Prof. Volokh for making fun of conservatives, and it’s Prof. Volokh’s blog so he gets to make the rules — but Artie Ray just seemed so damned excited about this Parler stuff.)

    1. Parler? What Parler? I don’t see no stinkin’ Parler.

  30. Remember when Pelosi welcomed protester in the Capitol?

    1. Some of you guys are insistent on taking the hard fall.

      Suit yourselves.

    2. The protesters Pelosi liked didn’t force their way into the Capitol, beat up cops, or trash the building. Nor did they bring zip-ties with them for the apparent purpose of handcuffing legislators whose views they disagreed with. There’s nothing wrong with peaceful and legal protest; it’s protected by the First Amendment. But that sure ain’t what happened on January 6.

      1. Nor is it what happened to city, after city, throughout the summer, but that was just peachy to the biggest whiners about what was mild in comparison.

  31. So I guess the talk about a Truth and Reconciliation Commission was just that, huh? More salt in the wounds. WTF.

    1. First item on the agenda; choose between truth and reconciliation.

    2. “Truth” = “Big Brother says Orange Man Bad”
      “Reconciliation” = “There are five fingers”

  32. You know, Professor, citing FDR and Wilson as examples of presidents who “got away with violating the constitution” really doesn’t fit, in light of the fact that the Supreme Court at the time held that each of them had acted consistently with the constitution.

    However, the FDR and Wilson examples do serve as reminders of how emotional, immediate, “we must do something!“ Responses to real or imagined crises are not necessarily our country‘s finest moments, and are all too often things we later come to regret. Let’s bear that in mind before we once again travel down that road.

    1. Here, here (or is it hear, hear?)

    2. Trump may be closer to the Phantom Menace rather than Palpatine, with some Jar Jar thrown in.)

      https://www.youtube.com/watch?v=ZuP2wvTAj0E

  33. Why Impeachment Should Proceed Even if it Cannot be Completed Until After Trump Leaves Office

    Law professors often do not distinguish between CAN and SHOULD. Your title well illustrates the point.

    Perhaps impeachment CAN proceed as you suggest, although I find your proofs dubious and inconclusive.

    Whether it SHOULD proceed is another question. Proceeding in this manner would simply enflame the country with little to show for it. Trump is not running in 2024. It’s all a smokescreen by the Huckster In Chief. (Although it is a good way to milk more money from the base.)

    Better option it to humilate Trump’s name to the point that he will be universally reviled. Which takes hard work.

    1. If only the OP contained separate sections on “why it could proceed” and “why it should proceed”…

  34. I posted something about Parler here, but for some reason it disappeared. Don’t know if it was stricken out, or just got lost in cyberspace. So I will repeat.

    Hard for me to see how Parler has been hurt by being delisted from the Google and Apple App Stores. Any phone with a web browser (which means every smart phone) can just go to Parler’s website and download their App (they have one for Android and one for Apple). Anyone with just a little motivation can get it.

    Rather than whine about censorship, Parler should be using this as a marketing tool. “We’re the social media site Big Media is afraid for you to see. Get our App on our website [link] and decide for yourself.”

    The free market can take care of the problem. Google and Apple rose by the free market, and they can be hurt by it.

    (For the record, I despise Twitter, which I think has contributed to the dumbing down of American civil discourse. So I have no plans to sign up for a right-wing version.)

    1. Going to the website and downloading the app won’t do you much good if Parler can’t find a cloud service to host its data.

      1. Is that a problem? So far all I have heard is you cannot get the App through the popular App stores.

        1. Yes, but if the app is down (like it was this morning), installing it doesn’t do you any good.

          1. Is you understanding that it is down because they cannot get cloud service? I am just trying to understand what is happening.

            1. YEs, I see CNN is reporting that Amazon kicked it off their servers, not just the App store.

              But they are on the process of getting an alternative.

              We will see, but I suspect they will be up and running within a week. And then this whole event will be a major marketing boon for them.

              It’s like being “Banned in Boston.” Nothing like a ban to get attention.

              1. Yes and no. It will certainly be a marketing boon for them among a subset of American internet users, but it will also be the kiss of death for any dreams they might have had of challenging Twitter.

                1. Which is where there might indeed be an antitrust action. If Twitter and Amazon colluded to kill of an incipient competitor of Twitter, then they have a problem. (A big IF on the facts, but not crazy.)

                  1. What would Amazon have to gain from that? From Amazon’s perspective, the more competing social media platforms there are, the better, because they’re all customers of AWS.

                    1. Well, Bezos got hit verbally pretty hard by Trump. Revenge is quite a motive.

                      Twiter bans Trump so Bezos takes away an alternative.

                    2. That would be a gain for Jeff Bezos, not a gain for Amazon and its other shareholders.

      2. And how many cloud service companies are there? How hard is it to set one up?

        1. One that has enough capacity to meet Parler’s needs? A couple, and it’s quite costly to set one up. Apart from AWS, the biggest ones are owned by Microsoft, Google, and IBM.

          The next question is how much time and money it costs to make that switch, in terms of making the necessary adjustments in Parler’s systems. From what I gather, they could do with some adjustments anyway, because some creative person made off with all of their archives, including backups of messages that people thought they’d deleted.

          1. Ahh, employee steals data. The garden variety trade secret case,.

  35. But the more lax we have been on such matters in the past, the more imperative it is to make up for lost time now. If we live in a neighborhood where criminals routinely get away with murder, the right way to deal with the next murderer we catch is not to let him go, but to impose a severe punishment, so as to show that the days of impunity for murderers are over.

    Impeaching Trump isn’t “deal[ing] with the next murderer we catch.” It’s more like doing something about all those murders by charging someone with murder because he told people things like “Never give up” and “we’re going to walk … and … cheer,” on the theory that those words were tantamount to ordering a mob hit. (See https://althouse.blogspot.com/search?updated-max=2021-01-08T18:34:00-06:00&max-results=16)

  36. I encourage Congress to proceed with impeachment and trial. As long as they are occupied with that, they aren’t passing the kind of stupid laws I’d expect the new majority to try enacting.

  37. “the Court even ruled that issues involving impeachment procedures are “political questions” almost entirely beyond the reach of judicial review.”

    “Almost dead is not completely dead.” Princess Bride.

    Forcing a private citizen to undergo a kangaroo “trial” before an extrajudicial tribunal might still perk interest.

  38. Trump didn’t incite the riot, unless I missed him telling the protesters to do it.

      1. It’s not clear that he incited a riot. His comments were in fact very similar to those made by Dan Siegel, a member of SDS, half a century ago, when he told the crowd in Sproul Plaza to go to People’s Park and “take” it. That too ended badly, and Siegel was charged with inciting a riot. But the jury acquitted him. I am in no way defending Trump’s remarks, which in my view were highly inappropriate and totally unacceptable for a President who has taken an oath to uphold the Constitution. But I’m not sure that he committed a crime. I think it would be a mistake to charge Trump criminally, based on those remarks; it is doubtful that he would be convicted and it would further inflame and divide the country.

  39. Ilya’s description of the Belknap impeachment appears incomplete, if not misleading. As best as I can tell, there was no doubt that Belknap took kickbacks on a government contract to finance a lavish lifestyle. The sole reason that he was acquitted was that a large number of Senators thought they lacked impeachment jurisdiction over a former officeholder. That was the only Congressional attempt to impeach a former officeholder, in other instances the matter was dropped if the subject left office, most famously after President Nixon resigned. Expiration of the term of office may be a stronger basis for dropping the matter than resignation. In any event, successful impeachment of a former officeholder is unprecedented, so suggesting it can be done for Trump easy-peasy seems like a stretch.

    1. Well, Belknap was impeached after he resigned. And then the Senate debated and decided that they did have jurisdiction. So they tried him. And a minority of senators — sufficient because 2/3 are required for impeachment — then acquitted him, possibly because they thought they lacked jurisdiction.

  40. I just realized that the Senate still has a 51/48 Republican majority. Kelly Loeffler is still a Senator and the results of the Georgia Senate election may not be certified until January 22, although it could come earlier.

    Georgia counties have until January 15 to certify their results and the Secretary of State has until January 22 to certify the election results, although it could happen sooner.

  41. Unbounded Trump hatred yields psychotic thinking.

  42. Impeaching and convicting Trump (which cannot go forward since he will not be in office at the completion of the process) would not stop him from running for elective office or being re-elected (hello Aclee Hastings).

    1. Disqualification from federal office is manifestly an authorized penalty upon conviction in an impeachment trial.

  43. Impechment and removal DOES NOT bar the person from ELECTIVE office. Voters are entitled to elect crooks, drunks, scalliwags, immoral, or rent-seeking dolts. and do.

    Alcee Lamar Hastings /ˈælsiː/ (born September 5, 1936) is the U.S. Representative for Florida’s 20th congressional district. The district includes most of the majority-black precincts in and around Fort Lauderdale and West Palm Beach. A Democrat, Hastings served as a United States District Judge of the United States District Court for the Southern District of Florida until his impeachment and removal.

    1. One of the posters above said that Alcee Hastings was not barred from elective office as part of his impeachment. It doesn’t always happen.

  44. Ilya still trying for a job at the Bulwark. Reason doing social justice opionion these days versus law. Ruining your reputation as a serious legal source, Volokh

  45. Still waiting on thoughts about why the dems are slow walking the timing of a Senate trial. As I posted earlier Clyburn has all but confirmed even if the House votes to impeach they will not send the articles of impeachment to the Senate for 100 days and Pelosi seems to be on board with that.

    On the other hand it would be interesting if the Senate came back early and dared the House to send over any articles of impeachment given that no one with an IQ above room temperature thinks the Senate would convict.

    Point is that as unlikely as a conviction is now it will be even more unlikely down the road. Not much chance the economy will improve by then and every expert I know of seems to think COVID-19 will get much worse before it gets better. Hunter Biden is under investigation for money laundering and that may start seeing the light of day. Things like the Green New Deal and massive deficit spending to deal with lots of unemployment don’t have universal support.

    This is not the first time I have asked Ilya and others to answer the question ‘how realistic is it to think there will ever be 67 votes in the Senate to convict Trump?’.

  46. As much as I hate what happened at the Capitol, telling your followers to go peacefully and patriotically to the Capitol is not inciting violence. Who would have thought after ignoring rampant crime all summer that the left all of a sudden are supporters of law and order. What a bunch of hypocrites.

  47. This is crazy talk parading as textual analysis. Article 2, Section 4, provides for impeachment of “The President.” Pursuant to the plain terms of the Twentieth Amendment, effective at noon on January 20, 2021, President Trump will cease being “The President” and will revert to being Mr. Trump, a private citizen. The Constitution does not permit the impeachment of a private citizen. Moreover, Article 1, Section 3, Clause 6, grants the senate the power to try the impeachment of “the President of the United States.” Again, effective at noon on January 20, 2021, President Trump will not longer be President Trump, he will be Private Citizen Trump and the senate will have no authority to try him for impeachment.

  48. I’m guessing somebody has some Russian hooker pee tapes on the staff around here. They sure are toeing the party line.

  49. Can Jimmy Carter and Bill Clinton be retroactively impeached for pardoning convicted terrorists who attacked Congress?

    Carter pardoned 3 of the Puerto Rican nationalists who shot up Congress in 1954 and hit 5 congressmen.

    Clinton pardoned Susan Rosenberg, who set off a bomb in the Senate office building in 1983.

  50. whether it COULD be done is the wrong question. MY question is ON WHAT GROUNDS. I’ve read the transcrit of his speech, and he DOES NOT provoke to violence.. his words are to the effect of marching peaceably to go air their grievances to the congrsssscritters. As is our right to do.
    Further when I consider the FACT that his speech ENDED at 1215 lcoal time, THEN the crowd leaft, and that place was a MILE ND A HALF from where the actual breach of the Capitol building happened… at 1200 local time, I am scratching all the hair off the top of my head truing to get a handle on what magickal powers Trump has to incite to riot FIFTEEN MINUTES AFTER the riot in quesitin started, ONE AND A HALF MILES DISTANT.
    I’ll say this.. IF he indeed has such superpowers, his enemies better be on high alert, as he’s got ways of “fixing” them from a distance before they act. Loke a Hero comic book character.
    Fairy tales in DC? That’s not new, is it?

  51. Gibberish
    “…President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment… ”
    After he leaves office he obviously won’t be in office anymore, and neither will he be president.
    Congressional authority to punish a president ends when he leaves office.
    Period
    This is done. Trump is not going to be impeached, and even if the Senate foolishly pursued it, it will mean absolutely nothing and have no force of law

  52. The few that attacked the Capital did not come for the same reason as those there to protest. They came with equipment and plans to do what they did. You can ask John Sullivan, founder of Insurgence USA, a blm/antifa extremist that was detained and questioned by police on Wednesday following his participation in the attack of the Capital. Oh yeah I can’t write that. It is a crazy right wing conspiracy theory to say blm or antifa was there.

  53. If the purpose of impeachment is to remove from office is this simply Pelosi and the left finally getting revenge for their loss in 2016 and trying to eliminate competition in 2024? If the Republicans in the Senate do go along with it I hope they have plans for a new career after their terms end and the Democrats would like to see Donald Trump Jr or even Ivanka as our next President.

  54. We are in the middle of the worst pandemic in a hundred years, yet the Democrats are more interested in attacking an opponent.

  55. As we have all come to expect, this nimrod is justifying a monumentally stooopid undertaking because it is legal, not because it is right or because it is good for the country. Donald Trump is a penis wrinkle on the body politic. He was here and in a few days he will be gone. Like the rest of us mortals, the dumb things he did will live on in infamy while the good will be interred with his bones. It is counterproductive to give him another month of rapt attention.

  56. Somin does not address how the Article II Section 4 even applies. It states that “the president … shall be removed … on impeachment.” It doesn’t even apply to “impeachment” of a person who is not president. He also doesn’t address the perniciousness possible by reopening issues long after a president has left office.

  57. Easy solution. Trump resigns and Pence pardons him. It save the country a fight and end both their political careers. I don’t expect it but it might be best.

  58. Here is another reason for impeachment. By voting for impeaching Trump the house would be expressing the will of the people thus this would give the Justice Department added incentive to prosecute Trump for treason. Now when he is convicted, and I have no doubt that he would, that would encourage the jury to hand out the maximum sentence since he has been in the highest office in the country. Because of the importance to make an example out of Trump death would not be enough. If there is any way that all that he has could be stripped from and his family that would be even better. This would be an example of what could happen to any other person is such position would also receive if the chose to follow Trump.
    But is not the only guilty one here all those in congress and those political leaders in each state that supported Trump over the last four years are just as guilty as Trump is and should also receive the same punishment.

  59. Somin is an all-too typical lawyer, wanting to use the law as a weapon against those of which he disapproves. The law is force and violence, encouraging its use is dangerous.

  60. Pelvis has already blown up one impeachment process against Trump when the articles of impeachment contained not even so much as a single misdemeanor.

    This time the articles of impeachment contain only one charge, which does not seem to be supported by the evidence, when the legalities look through the personal hate.

    However, Pelosi could end up looking at a hate crime charge especially if Trump is aquitted.

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