Contra the Luttig Impeachment Thread

Judge Michael Luttig thinks a former president cannot be tried in the Senate. The argument is flawed.


Former Judge Michael Luttig is a very respected conservative jurist and for good reason. As a consequence, when he said on Twitter that a former president cannot be impeached in the House or put on trial in the Senate on impeachment charges, people on the political right paid attention.

If he is right, then Senate Majority Leader Mitch McConnell's decision to delay the impeachment trial until the presidential inauguration would be fatal to the possibility of convicting Donald Trump for high crimes and misdemeanors. There is no doubt that Luttig's Twitter thread will play a prominent role in the president's defense case and Republican senator judgments. We should take it very seriously. But it is wrong, and senators should not be persuaded by it.

Over at Lawfare, I walk through Judge Luttig's argument in detail and show why it is inconsistent with the constitutional text, the purpose of the impeachment clauses, and our constitutional history with impeachments. From the piece:

Of course, in Trump's case the impeachment is of a current officer, and so the question is whether the Senate loses jurisdiction if the impeached officer resigns or completes his term before the trial. But if the Senate has the power "to try all impeachments," then it would seem that it has the power to try all individuals whom the House has impeached and brought to trial regardless of whether that individual still holds public office. The House has frequently chosen to drop its impeachment efforts when an officer resigns; in those cases, it has generally either not voted on an impeachment resolution, not drafted articles of impeachment or not presented articles of impeachment to the Senate. But the fact that the House frequently concludes that its goals have been accomplished by the officer's resignation does not mean that the House could not have seen the impeachment through all the way to a Senate verdict.

Read the whole thing here.

It seems very likely that the article of impeachment would survive a motion to dismiss on jurisdictional grounds at a Senate impeachment trial of a former president Trump. It also seems very likely that the Supreme Court would decline to intervene to prevent a Senate trial or overturn a conviction. The real risk, I believe, is that this argument will persuade a sufficient number of Republican senators—or at least provide them with sufficient political cover—that the House fails to get the two-thirds of the voting senators that it will need to convict the former president.

It will always be an uphill climb to convict a president in the Senate. That climb will be even more difficult in a trial of a former president. No individual has ever been convicted in the Senate on charges arising from his conduct in a previously held office, though individuals have gone to verdict on such charges. The House managers will have their work cut out for them in countering Luttig's argument.

NEXT: There is Still Time to Fix the House Impeachment Process

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  1. I think whether a former President can be impeached is a political question, but whether he can be excluded from future office could reach the courts if he is convicted and excluded by the Senate, which I think is unlikely.

    The thing I am wondering though is whether Roberts will preside, one thing the Constitution is very clear about his that he has no obligation to preside over the trial of a former President.

    1. But is he prohibited from presiding over the impeachment trial of a former President?

      If not, why would he refuse if the Senate requested him to do so?

      1. To stay out of the political quagmire?

        Not expressing an opinion just throwing out a possible answer to your question.

        1. I would venture to express an opinion, and mine is that Roberts won’t preside unless he has to, and my reading of the constitution is that he is under no obligation to preside over impeachments of former presidents.

          So, if the senate asks, his answer will be no. Avoiding the “political quagmire” is exactly why.

    2. I suspect that the courts would dismiss the ineligibility question as non-ripe, unless and until he took steps to run for another office and those steps were blocked.

  2. Question:

    If Trump makes this argument at the Senate trial in the form of a motion to dismiss the trial, will the CJ rule on it and if so does that set binding precedent?

    1. No and no. In the Clinton trial, Rehnquist made clear that it is the Senate that decides all issues, including legal ones.

      Although one wonders what the purpose of having the CJ there is. Seems like just a decoration, i.e., a guy in a robe to make things look solemn.

      1. Presumably because of the Constitution, and that it specifically requires that the Chief Justice Preside.

        There’s one very specific clause he would preside over, and that’s the clause “no Person shall be convicted without the Concurrence of two thirds of the Members present.”

        If Democrats tried some “proxy vote” concept for impeachment, Roberts would probably shoot it down.

        1. No he probably wouldn’t, but in that case he wouldn’t preside.

          For some impeachments they appoint a committee as small as 7 senators to have the trial, and then the Senate votes to confirm the result, they could do that here too, if they so chose:

          “The Senate held an impeachment trial for New Orleans federal Judge Thomas Porteous for corruption and engaging in a kickback scheme with a Louisiana law firm.

          Senator McCaskill announced a recess because only three of the seven Senators necessary for the trial to continue were present.”

        2. “Presumably because of the Constitution, and that it specifically requires that the Chief Justice Preside.”

          But if he’s just sitting there and can’t make any binding rulings on motions or other issues, how is he “presiding” over the trial?

          1. He acts as a moderator, referring questions to the assembled Senate. There has to be someone to do that job, although it is hardly necessary that it be the Chief Justice, except that the Constitution requires it. As moderator, he might exercise some mild influence over the proceedings.

            1. If he refrains from making any rulings, as per the Rehnquist quote, that’s not being a moderator either.

          2. Well, as I recall, in the last impeachment trial he presided over, he refused to permit any questions that might reveal the name of the whistle-blower whose name everybody already knew from being ‘revealed’.

            John Roberts blocks mentions of alleged whistleblower’s name

            So, it’s not like he was refraining from binding rulings. He just limited himself to really stupid, pointless binding rulings, and otherwise let them do anything they felt like.

            Amusingly, the Politico report I linked to above plays along with the lie that they didn’t really know who he was.

            1. But that’s Roberts, I was responding to a Rehnquist quote from the Clinton impeachment.

        1. Gah — my latest “oh for an edit button” moment.

      2. I figured he didn’t want any impeachment sticking to him.

      3. Rehnquist ruled on motions but his rulings were subject to appeal to the members who could overrule him with a simple majority. In that sense yes the Senate decides, but it is the same arrangement for the presiding official in a regular Senate session.

  3. Before we start Civil War 2.0, can we walk back from the brink. I’m here in Ohio surrounded by very angry, very well armed Trump supporters who absolutely believe the election was stolen. Impeach Trump and make him a martyr at your own peril – unfortunately, it will my peril as well.

    1. Johnathon Turley wrote a good opinion piece on why a commission to investigate the election irregularities would have been good. It also would’ve helped convince the Trump supporters that their concerns were being listened to, and cost almost nothing.

      1. There is utterly no evidence you can produce that the Trump supporters would pay any attention to whatever.

        If 60 court tests where the pro-Trump forces were unwilling or unable to present any evidence that the respective courts could recognize, why the hell do you think a 61st one would?

        A commission to look into the 2020 election would be a farce from the get go. The pro-Trump lawyers would once again present allegations of things as proof, the commission would dismiss it, and the Trump mob would conclude that the fix was in against them. No thanks.

        1. Do you not realize that, rather than demonstrating that Trump supporters wouldn’t respond to evidence, you just demonstrated that the courts refused to?

    2. “I’m here in Ohio surrounded by very angry, very well armed Trump supporters” . . . “it will my peril as well.”

      So, so melodramatic!

      Do you have smelling salts? Or a fainting couch?

      1. He’s a drama queen just like AOC.

    3. Yes, we know. It’s precisely because Trump has been getting his supporters so angry and told them that the election was stolen that’s the problem.

    4. I’m here in Ohio surrounded by very angry, very well armed Trump supporters who absolutely believe the election was stolen.

      I presume you also have the Ohio National Guard. They’re much better armed. And the U.S. military is even better armed than that.

      I’m a Libertarian…but my being a Libertarian doesn’t divorce me from what I think is reality. And I think the reality is that the 2nd Amendment was meant for a time before there are drones and human-piloted aircraft and helicopters with precision guided munitions, and tanks, armoured personel carriers, M-16s, body armor, night vision goggles, tear gas, etc. etc. etc.

      A bunch of 40-something tin soldiers with beer guts and rifles…even assault rifles…will be cut to ribbons in short order by modern National Guard or military forces.

      A fairly good Star Trek Next Generation episode deals with a similar situation. Data is trying to prevent human settlers from being slaughtered by the Sheliak…the non-human owners of the planet that human settlers happened to have landed on and built settlements. The settlers plan to fight the Sheliak. Data says something to the effect of, “They will kill all of you from orbit. You won’t even see them before you die.”

      In this case, your “angry, well-armed Trump supporters” might see at least the vehicles or even the people who kill them. But it would still be slaughter…I’m talking about 10+-to-1, or even 100+-to-1 deaths for the weekend warriors versus National Guard or conventional military.

      P.S. But being caught too close to the slaughter might indeed be dangerous. If you have family/friends in another state, you might want to go away for the week or two the slaughter will take. Hopefully, your home will still be there when you get back.

      1. And Saigon is still the capitol of a sovereign nation…

        1. And Saigon is still the capitol of a sovereign nation…

          Completely different situation in so many ways it’s impossible to list them all, but:

          1) Angry beer-gutted Republicans in Ohio have no anti-aircraft missiles.

          2) Aircraft today vs aircraft in Vietnam are like aircraft in Vietnam vs aircraft between WWI and WWII.

          3) Drones, airplanes, and helicopters with precision-guided munitions mean that collateral damage can be much lower, and losses to the military doing the slaughtering will be much lower.

          4) We know the territory…literally to within a foot.

          5) We didn’t know who the enemy was in Vietnam. We certainly would among angry Ohio Republicans. We have registered voter lists! We have social media accounts. With DNA analysis capabilities today, we could literally turn every place they hid into a crime scene, to identify who every person who left DNA at the hiding place was.

          6) Russia and China were backing the North Vietnamese. They wouldn’t be so foolish as to back angry middle-aged Ohio Republicans.

          7) To wage any war takes money. It would be a piece of cake to to freeze the bank accounts of everyone involved in the insurrection. No money, no ammunition. (Even no food.)

          8) I could probably literally list 100+ more differences, but these alone, to me, show that the idea of some 2nd Amendment geezers holding off the National Guard or the military is a joke.

          1. To be clear, none of this helps you. Why the left imagine that the right would form up into nice columns for the Air Force to bomb is beyond me. Did the Weathermen put on uniforms and march on police stations? Did the IRA set up clear battle lines?

            All you’re suggesting is measures that would make the country ungovernable, and bring it down in ruins.

            1. “Why the left imagine that the right would form up into nice columns for the Air Force to bomb is beyond me.”

              I’m not on the left, you moron. As I’ve already written several times, I’m a Libertarian. If you have a reading disability, have someone explain terms to you.

              “Did the Weathermen put on uniforms and march on police stations? Did the IRA set up clear battle lines?”

              And how many police did the Weathermen kill, versus how many Weathermen were arrested?

              And more importantly, how many governments did they overthrow? You lunatics dream that you somehow have power simply because you may own a few guns…or even a frickin’ roomful of guns. But the fact of the matter is that the U.S. military is composed of *professional soldiers*, most of them in the prime of their lives, and backed by weaponry that the writers of the 2nd amendment could not even dream of. And the U.S. military is backed by the U.S. government, which is powerful beyond any imagination of the Founders (e.g. with aerial surveillance, GPS tracking, DNA analysis, etc. etc. etc.)

              (A short diversion: A relative of mine was in the marines until an injury forced him out. Talk about a young man in the prime of his life and in top physical condition! I see all these middle-age laughable losers with their long beards and beer guts, pretending to be tough guys. My guess is that, in hand-to-hand combat, those guys would be dead in a minute faced by a young marine like my relative.)

              “All you’re suggesting is measures that would make the country ungovernable, and bring it down in ruins.”

              No it wouldn’t, because while there are far too many Cult of Trump lunatics in the U.S., there aren’t really that many. Two perfect examples of this are the Unite the Right rally in Charlottesville and the January 6th attack on the Capitol. If you think either of these events showed the strength of the Cult of Trump, you’re absolutely wrong. The vast majority of the country was revolted by the behavior of Trumpists in both instances.

              As a Libertarian, I’m definitely not a fan of Joe Biden. And I don’t like the military attitude and style of most police…but if the people who were involved in the death of the Capitol Police officer Brian Sicknick are prosecuted and scheduled to be executed, those would possibly be the few executions I’d ever want to see.

              Donald Trump was beaten in a fair election. And now Republicans, through stupidity, incompetence, and bad judgment, have lost the presidency and Senate, as well as the House. Fix your goddam party. Or if you really care about limited government and personal freedom, join the Libertarian Party.

      2. Let me explain the fundamental flaw in your reasoning.

        Were the Sheliak relying on the settlers to farm for them, mine for them, and so forth? Were the Sheliak armed forces composed of settlers, and relying on munitions factories run by settlers? Did the Sheliak live in the settlements?

        Look, if you want to subjugate another nation, ‘bombing from orbit’ is a viable threat. If you want to subjugate your own nation, not so much. Sherman could do his march to the sea because he wasn’t marching through the croplands that fed his troops.

        Are you even familiar with the concept of a “Pyrrhic victory”? Because that’s what you’re suggesting.

        1. “Sherman could do his march to the sea because he wasn’t marching through the croplands that fed his troops.”

          Actually, he was :-). He severed his supply lines and lived off the land. Specifically, he was using the croplands that had been feeding the confederate armies (and civilians) to feed his army. The croplands in Ohio or wherever that had been feeding Sherman’s army just got to bank a couple of month’s surplus, I suppose.

        2. “Were the Sheliak armed forces composed of settlers,…”

          In this situation, our armed forces damn well better *not* be composed of “settlers” (Trump cultists). Our armed forces swear an oath to the Constitution, not to Donald Trump.

          “If you want to subjugate your own nation, not so much.”

          It’s not “subjugation,” it’s following the rule of law. Every single one of the people who forcibly crossed the police barricades (pathetic though they were) at the Capitol on January 6th broke the law. Every single person who punched or pushed a police officer broke the law. And every single person who *entered* the Capitol, especially through windows or doors broken or forced open, broke the law.

          If there are nutjobs who think they can tell a mayor, governor, judge, election official, Congressperson, or President what to do just because they have a gun, or a roomful of guns, they’re wrong.

    5. Have you considering moving to an educated, accomplished, decent, reasoning, modern community? Why stick with an ignorant, shambling, bigoted, superstitious, obsolete community?

    6. Hope it works out as well for traitors as Civil War 1.0.

  4. Are we going to have multiple dueling posts every day until the acquittal?

    Everything that can be discussed has been discussed.

    1. So, in other news we got a look at Biden’s proposed COVID relief bill.

      There’s a bunch of stuff in there, but one struck me as a deal breaker. And that was the Federal Minimum Wage being hiked up to $15 an hour.

      It’s hard to emphasize just how bad that is for economic growth. When this was proposed back in 2019, it was estimated that a $15 an hour minimum wage would cost 100,000 jobs in Georgia. (It’s more than a 100% hike in the minimum wage there). With things as they currently are, coming out of COVID? It could basically destroy small business in Georgia (and all the jobs there) for a generation.

      1. That one will be interesting. It can’t be passed through reconciliation, so he’d need at least ten Republican votes to get it, and I don’t think those votes are there. But a $15 minimum wage is so popular with voters that it will be costly for Republicans to oppose it.

        If they were smart, Republicans would counter with (say) a $10 minimum wage, and then put the Democrats in a bind of having to either accept the $10 minimum wage and look to their labor allies like they sold out, or rejecting the $10 minimum wage on principle and leaving millions of Americans making less than $10 an hour. We’ll see if they’re smart enough to make that offer.

        1. “it will be costly for Republicans to oppose it”

          Nearly two years before the next election?

          I’m always skeptical about bills proposed [or even passed by one house] to make a point. Very few people follow the ins and outs of congressional votes. The last House passed hundreds of bills, I don’t recall them being much of an issue in the election, it didn’t save them from losing seats.

      2. That and bailing out state and local governments. It has very little to do with covid, it’s from years of mismanagement.

        1. The lockdowns directly leading to significant declines in state tax revenues haven’t helped.

      3. The argument that enough pay to live on will bankrupt small business is made every time. But whenever the increase passes, it turns out the surge in spending by the low earners has been good for business. Now, if you are going to have a mandated minimum wage, it is must be adequate enough to house, feed, and clothe at least 1.5 people. It seems to me that $15/hr. seems about right.
        I would prefer that there be no minimum wage. But then most small businesspersons would pay only peon wages. Eventually, violence erupts. The smart, conservative alternative would be to establish a universal basic income and extirpate the minimum wage. It would require a well thought out tax scheme to be able to function. I’ve done that, actually, but because humans are so self-centered about lazy people being parasites, so much so that they refuse to disrobe their louse-infested clothing, they always rebuff my UBI ideas. Now, after decades of proselytizing, I seem not to have the capacity to sway you. Too bad for you!

        Hint: Vary your tax rates to make citizens pay nominal percentage on the lowest quintile of dollars (including the UBI) so that everybody takes responsibility from the get go, then NO TAX on the next quintile, then normal again, and for the last two quintiles, whatever it takes to balance the books.

        1. Not to get too far into the weeds, but setting a national minimum wage for the purpose of providing a certain level of support doesn’t work. $15 an hour in middle America rural areas will probably pay for well over 1.5 people. $15 in any coastal urban center will allow one person to eat in the comfort of their very own tent.

  5. Are people seriously worried that Trump will run for and become President again?

    That’s just incredible. Can’t even imagine. If he were younger maybe. He’s already made history in a big way, and this would be another level beyond that.

    1. Are people seriously worried that Trump will run for and become President again?

      I view the Republican Party…at least in 2020…as the Cult of Trump. It’s reasonable to assume it wouldn’t be in 2024, but I don’t think it’s worth taking the chance.

      There must be SOMEONE in the Republican Party in the Senate who can explain to other Senate Republicans: “Look, it makes sense to *unify* to make sure Trump can never run again. That leaves everyone open in 2024 without having to worry about Trump.”

      There’s safety in numbers. If something like 20-30 Republican senators vote to prohibit Trump from ever running for office again, then there’s no way the Republican Party can turn on them. It would be insane of the Republican Party to primary-out 20-30 veteran Senators and try to win with people with no Senate experience. Doing that would cost Republicans the Senate for long time, given the power of incumbency.

      1. Were mad, and losing 30 Senate seats is acceptable.

      2. If 20-30 Senate Republicans were to vote for conviction, methinks it wouldn’t be the “Republican Party” they’d have to worry about. It’s those 40-something beer gutted tin soldiers** – oops, I meant voters – they’d need to worry about.

        ** nice stereotype, by the way.

    2. Another thing is…what Trump has done after the election is so far beyond the pale that there needs to be an extremely strong response to emphasize that this must never happen again.

      1. the strongest response, is prosecution, conviction and a jail sentence. You can’t get more emphatic than that. All else is kabuki

        1. Well, those remedies are beyond the power of the legislature. All they can do to Trump is impeach and bar him from running again.

          They can and should pass legislation to prevent future abuses of power on the part of the executive branch, but those new laws won’t apply to Trump.

    3. “Can’t even imagine”

      I can’t either. And to the extent I could imagine it, I wouldn’t be worried about the candidate, but the voters. If you have enough seriously pissed off voters to remotely contemplate him winning an election in 2024, what’s the plan when someone a little more charismatic appeals to those voters? Driving the wooden stake through Trump and then ignoring or counting on suppressing his voters seems … short sighted.

      1. There are some who would like nothing more than to continue goading Americans (on any side) into political violence against other Americans.

    4. If Trump is popular enough to win in 2024, pissing off his supporters with a sham impeachment is definitely the right thing to do! Said no intelligent person ever.

      1. True, but this is Congress we are talking about…

      2. Amos, would it make any difference to Trump voters if it weren’t a, “sham,” impeachment, but a real one? I doubt it would.

        I don’t agree this is a sham. I think if Trump’s conduct since election day, taken as a whole, and including the Capitol riot, isn’t impeachable, then nothing is, not even proved treason.

        Trump created a frenzy with repeated false allegations that the election was stolen. He knew what frame of mind that created among the mob in Washington. It was the frame of mind he had always intended. He egged them on anyway. They went to sack the Capitol. Reps and Senators concluding the election process had to flee for their lives, abandoning the legislative chambers as those were invaded.

        During desperate hand-to-hand combat in and around the Capitol building, people died. Trump sat watching on television and did nothing—no action to bolster defenses against the mob, nothing said to chasten or recall the mob.

        Had the Capitol been defended by the Secret Service in the same way they customarily defend the White House, many, many members of that mob—there at Trump’s behest—would have been slaughtered, just as they would be if they breached White House fences and stormed the doors. And slaughter would have been equally justified in either case.

        Support of that Capitol attack now is shameful, after the fact. The evidence is plain, and available to anyone who cares to turn on a television, or look at still photography on the internet. You have time to reflect. There is only one wise course for Trump’s erstwhile supporters. Change your course, back down, and shut up. Trump deserves impeachment. He should be out of office already. You should back that.

        1. “I think if Trump’s conduct since election day, taken as a whole, and including the Capitol riot, isn’t impeachable, then nothing is, not even proved treason.”

          This is absurd – there’s a lot of room between Trump’s behavior and treason. That you can’t see it speaks more, etc.

          1. There’s virtually no room between what he did and treason. That you can’t see it speaks more, etc. He tried to stage a coup. He was resoundingly defeated in an election, and then tried everything he could to overturn it, and when all else failed he tried to have the people who were going to formalize the result terrorized and/or killed.

          2. Jmaie, only technicalities of definition lie between Trump’s behavior and treason. Trump’s conduct since the election has been a sustained attack on the sovereignty of the American People, an offense as odious as war against the People could ever be. Sovereigns must be on guard equally, against attackers from without, and against rivals from within.

            As for consequences, Trump’s mob attack on the Capitol, and the mob’s likely persistence as a canker in the body politic, certainly rival, and may eventually surpass any instance of actual treason the nation has ever experienced. Please just stop. Your nation needs your support.

            1. “Please just stop. Your nation needs your support.”

              Please stop making assumptions. I support impeachment. But your earlier statement was ridiculous.

    5. Are people seriously worried that Trump will run for and become President again?

      Run for, yes. Become president, no.

  6. By all means lets drag this out as long as possible.

  7. Wow, the “bipartisan” consensus that the Conspirators are planning on seems to be a little hard to develop. You can fire any professors who disagree with you–and many law professors are moving in that direction–but federal judges are a little harder to bring down.

  8. Incidentally, for those who may not recall, Mike Luttig (then a judge on the Fourth Circuit Court of Appeals) is the guy conservatives were really pushing President Bush to appoint as Chief Justice, though Bush, not wanting a fight with the Democrats, went instead with John Roberts, who has become the jurist all his conservative detractors knew he would become.

    Imagine if Joe Biden (or, more precisely, the person who writes the words braindead Biden mindlessly repeats) were to say, “We’re putting the last administration in the rear-view mirror and moving forward as one united nation to tackle the difficult issues before us.” How far would that go to prove his call for unity is sincere? Of course, we all know it is not.

    Whether this farcical impeachment can barely clear hurdle of legality is not really the important question. It’s like a prosecutor or a police officer asking exactly how far he can push the envelope before his actions become abusive or illegal.

    1. F.D. Wolf, Biden’s struggle for the presidency began in high school, and continued without pause until he won election imposingly, just now. It is the longest such effort in the nation’s history. Along the way, he garnered expertise in, at least, foreign affairs, the judicial system, national administration, and practical politics. Were “braindead Biden,” unaccountably to find himself in a debate against F.D. Wolf touching on any of those topics, what do you suppose would happen?

  9. Lord Macclesfield resigned as Lord Chancellor on January 7, 1725. In February he was impeached by the House of Commons (by a vote of 273 to 164) for corruption in connection with his office. His trial before the House of Lords began on May 6, 1725 and a judgment of guilty given on May 27, 1725.

    resigned office January 7, 1725 …. found guilty in an impeachment proceeding for corruption while in office on May 27, 1725.

    Original-something-something-meaning and all that.

    1. But the Macclesfield impeachment occurred under a different legal regimen, under which the House of Lords had the capacity to impose fines, which they did in Macclesfield’s case. The Framers specifically eliminated that rule. And many U.S. officeholders have resigned as result of scandal, but Congress only followed up with impeachment in one or two very unusual cases. So the precedents don’t really support your argument.

      1. By your logic, anything the President does in the last few months of his administration is beyond reproach

  10. Here’s how you know what “deranged” means: you win the election and spend your first 100 days officially hating on the guy who lost.

    Even in defeat, Trump is STILL dominating your agenda.

    1. DaveM, until the last day of his presidency, Trump retains extraordinary powers to dominate the nation’s agenda. It is the nation’s misfortune that he continues to abuse them.

  11. The outcome of this impeachment doesn’t matter. Only the optics matter. You can bet that phrases like “A threat to Democracy”, and “Inciting rebellion” will be overused by the Democrats and their media.

    1. Jerry B, it is unsurprising that many Americans, and especially Trump supporters, do not yet understand in historical context what they have just seen. History doesn’t sink in without hindsight.

      But the phrases, “A threat to democracy,” and “Inciting rebellion,” are indeed destined to echo in history. They will be joined by others, including, “Attempted coup,” and “Most dangerous crisis since the Civil War.” Whether other historical assessments—assessments yet more dire—will apply, is what this nation’s people must now struggle to determine.

  12. “This high court — this supreme court of appeal from all the courts of the kingdom — this highest court of criminal jurisdiction, exercised upon the requisition of the House of Commons, if left without a rule, would be as lawless as the wild savage, and as unprincipled as the prisoner that stands at your bar. Our whole issue is upon principles, and what I shall say to you will be in perpetual reference to them, because it is better to have no principles at all than to have false principles of government and of morality. Leave a man to his passions, and you leave a wild beast to a savage and capricious nature. A wild beast indeed, when its stomach is full, will caress you, and may lick your hands ; in like manner, when a tyrant is pleased, or his passion satiated, you may have a happy and serene day under an arbitrary government. But when the principle founded on solid reason, which ought to restrain passion, is perverted from its proper end, the false principle will be substituted for it, and then man becomes ten times worse than a wild beast. The evil principle, grown solid and perennial, goads him on and takes entire possession of his mind ; and then perhaps the best refuge that you can have from that diabolical principle is in the natural wild passions and unbridled appetites of mankind.”

    (Edmund Burke, Speech at the High Court of Parliament on the Impeachment of Hastings)

    Mr. D.

    1. “The collective, violent aggressors are unaware of the mimetic nature of their actions and the transfer of their own aggressions onto a presumed evildoer. They notice only that the longed-for peace returned with the expulsion of the one person. Instinctively, they ascribe the new peace to the killing of the victim — who becomes a savior. The fascinating power of the idol that had always been there, but had remained hidden, can now freely develop.”

      (Raymond Schwager, S.J., Must There be Scapegoats?)

      Mr. D.

      1. Instinctively, they ascribe the new peace to the killing of the victim — who becomes a savior.

        Someone is proposing a criminal trial that could lead to the execution of Donald Trump?

        I thought the impeachment conviction would only result in “…disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States.”

        1. Well, if murder is causing a death sooner than would other wise have occurred, and Presidents tend to live longer….

          You have to concede, though, that the crowds aren’t chanting for “Appropriate and objective examination of discrete acts in comparison to the standards of enacted law, and a sentence that accords with the penal objectives of the state!” (Though if they were, that would be cool.)

          It is a criminal trial, not an administrative determination of whether someone should be allowed to run for office. And I’m not entirely sold on that “and” in the High Court’s remit being disjunctive.

          Mr. D.

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