Impeachment

When is an Officer Impeached? V

The House and Senate are making unforced errors in laying the groundwork for an impeachment trial

|

During the first impeachment I wrote a series of posts trying to answer the question of when exactly an officer is impeached. (Just to address a common terminological confusion, recall that an "impeachment" is what the House does, and an "impeachment trial" is what the Senate does.) The question seemed relevant because House Speaker Nancy Pelosi decided to sit on the articles of impeachment adopted by the House and delay delivering them to the Senate. But as I emphasized then, the question of the official timing of the impeachment was entirely academic since there is no constitutional or legal consequence to an impeachment except that the Senate may then hold an impeachment trial (unlike in some state systems where the officer is immediately suspended from his office at the moment of impeachment). The delay did have political and rhetorical consequences, however, undermining the House's claim that the president was a clear and present danger to the republic who needed to be removed immediately.

Pelosi is doing it again. The House has voted to impeach and has approved an article of impeachment, and Pelosi has even named a team of managers to prosecute the impeachment case. But Pelosi has once again decided to sit on the articles and to not formally notify the Senate that the president has been impeached. This time it might have more substantial consequences.

On the upside, the delay does provide an opportunity for the House to improve its case. The House could adopt additional articles of impeachment or rewrite the one it has already improved. The Speaker could appoint additional managers or remove some who have already been named. The House can spend the time preparing for its prosecution, time that might be particularly valuable since the impeachment itself proceeded on an expedited schedule without hearings.

On the downside, the House's slow process has weakened its own rhetorical framing of the need for impeachment. I thought the House should have impeached Trump immediately after the riot, before the electoral count even resumed. If the president posed an immediate danger to the republic and the Congress, then there was no time to waste. Instead, the House chose to waste time—an entire week—to impeach a president who only had two weeks left in his natural term of office. If you believed that Trump was fomenting an insurrection from the White House, this is not how you would react. There are still good reasons to impeachment and convict the president, but the House needs to take care in how it explains the case in order to deemphasize the immediate threat and emphasize the long-term principle.

More significantly, the House risks handing the Trump defense team unnecessary legal arguments. It will already be difficult to persuade two-thirds of the senators that a former president can be put on trial and convicted of high crimes and misdemeanors. I believe that the House can impeach a former president and that the Senate can try a former president, but the textual case is stronger for the latter than the former.

The House has the "sole power to impeach." That power very clearly includes the authority to impeach a sitting president. The Senate has the "sole power to try all impeachments." If a sitting president is impeached, the Senate has clear textual authority to conduct a trial on those impeachment charges. The Senate has proceeded to trial before when an officer has resigned after his impeachment (in the case of Secretary of War William Belknap in 1876). Even if you have doubts about whether the House can impeach a former officer, you should have far fewer doubts about whether the Senate can try an impeachment involving an officer who has left office after his impeachment.

But if you are of the view that the Senate can try all constitutionally valid impeachments, even when the officer has left the office, but an impeachment is only constitutionally valid when the impeached individual is a current officer, then the timing of the impeachment matters. Some of what Judge Luttig has written suggests that he is of this view. This might be the one circumstance in which, under the federal constitution, the question of when an officer is impeached has actual constitutional consequences.

If you take that possibility seriously—and some senators might—then it matters a great deal when exactly the House used its impeachment power to formally impeach Trump such that it can validly authorize the Senate to hold an impeachment trial. As I observed in the earlier posts, the traditional understanding of the impeachment power in the United States up until the early twentieth century was that the "impeachment" occurs when an authorized member of the lower chamber appears on the floor of the upper chamber and "impeaches" an officer by formally leveling an accusation and demanding a trial. Starting in 1912, the House has taken the view that the "impeachment" occurs when the House votes to adopt a resolution of impeachment. Under the modern view, Trump has already been impeached, and so there should be no question about whether the Senate can start a trial whenever the House gets around to exhibiting articles of impeachment. Under the traditional view, Trump has not yet been impeached and will not be impeached until the House formally notifies the Senate.

If Pelosi waits until after the inauguration of Joe Biden as president to formally notify the Senate of the impeachment and exhibit the articles of impeachment, she will have handed Trump's defense team a jurisdictional argument that they did not need to have. At least some senators might be willing to adopt the argument that the original meaning of the power to impeach required the House to have acted sooner and that the House has no constitutional authority to redefine this power to impeach and the process necessary to realize an impeachment. This issue would not normally matter, but it might matter in this peculiar circumstance.

Pelosi can still avoid this unforced error by taking the simple expedient of formally notifying the Senate that the president has been impeached before the president leaves office at noon on January 20, 2021. This could be done even without exhibiting the actual articles of impeachment, and it is the exhibiting of the articles of impeachment that triggers the beginning of the Senate trial process under current Senate rules. Why hand argumentative ammunition to Trump's defense team if you do not have to do so?

 

NEXT: Today in Supreme Court History: January 16, 1919

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

  1. Right…the back story of Belknap’s impeachment is that he opposed reconstruction, and allowed the army to prosecute the KKK.

    Once again, democrats are acting out when Republicans attempt to free the slaves

  2. Yet another professor with nothing productive to do.

    1. The purpose of impeachment is to remove an officer. Article II, Section 4 provides: “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment . . .”. If convicted by the Senate, Article I, Section 3 states, “Judgment in Cases of Impeachment shall not extend further than to removal from Office and [my emphasis] disqualification to hold and enjoy any Office of Honor, Trust or Profit ….” There is no provision that says the purpose of impeachment is to disqualify one from future office without also ordering removal. Moreover, the chief justice is to preside at impeachment trials of “the president.” This makes little sense if the person being impeached is no longer “the president.” Assume there is a current officer whose term is unspecified. Could that person be impeached solely for the purpose of disqualification from future office without being removed? Disqualification is not a separate penalty but an additional penalty to removal.

      1. If your interpretation is correct, what would happen in the following case:

        1) The president incites a mob to attack the Capitol on January 6th.

        2) The House votes to impeach on January 10th.

        3) The Senate starts the trial on January 15th. On January 18h, it looks like they will have a 2/3rds majority for conviction on January 19th.

        4) So the President resigns on January 18th, and pledges to run in 2024, when tempers have cooled on what he terms “fake news about my incitement to insurrection.”

        ???

        P.S. What would happen, in your interpretation, if the President ordered a nuclear bomb dropped on San Francisco on January 20th?

        1. The constitution does not resolve every scenario. And distorting the constitution to reach a preferred result does not faithfully support it. A person doing the horrible things you propose is still subject to the criminal laws and civil liabilities – a much better punishment than banning one from running for office. If he truly incited the mob or committed treason, the criminal law should suffice. And if it is an emergency, the House and Senate have the capacity, if not the willingness, to act consistent with the constitution.

          1. The constitution does not resolve every scenario.

            I think the Constitution resolves the first scenario. (I must admit the second one was borrowed without attribution from another commenter on the Washington Post website.)

            So let’s stick with the first scenario…which actually could reasonably have happened. Donald Trump *did* incite a mob to attack the Capitol on Jan. 6th. The House *has* voted affirmatively to impeach. It’s only the Senate part of the scenario that did not play out.

            It appears to me that in your analysis of the Constitution, a president can do any number of actions that violate his or her oath of office near the end of the first term, and either “run out the clock” or even resign immediately before conviction, and still run for another term after a wait of four years out of office. The resignation-just-before-conviction scenario, with a subsequent attempt to get back in office, is particularly reprehensible.

            But your whole analysis is based on a flawed assumption. Your very first statement was: “The purpose of impeachment is to remove an officer.”

            I don’t agree. The purpose of impeachment of presidents is to protect the republic from presidents who will not follow their oath of office to “…preserve, protect, and defend the Constitution of the United States.”

            Donald Trump is exactly such a president. (Do you disagree?)

            And the most dangerous type of president who will ignore his or her oath of office is one who has already been president for one term, violated his or her oath of office with impunity, and therefore has no real motive to stay within the oath of office for the second term…particularly at the end of the second term.

            You conclude your statements to me with: “And why shouldn’t the people be able to reelect him if that is their choice?”

            You obviously never has Mr. Harris’ American History class! (Mr. Harris was my eighth grade teacher in Augsburg, Germany Jr. High. If someone who reads this knows where he is, please contact me!)

            He set up a mock impeachment in which he was the president. I was in the Senate. Mr. Harris advised both the House prosecution and his own defense team (probably a bad idea for a president to do! ;-)).

            The charge was that he was elected U.S. president even though he had not yet attained 35 years of age. He even had the school secretary come in to testify that she’d been at his birthday party a few weeks before, and he was not yet 35. So the House prosecution (again, coached by Mr. Harris) asserted that he’d thus violated his oath of office.

            His ***defense*** team (again, coached by him) said that The People had elected him, even though they knew he wasn’t 35, so everything was fine.

            After I and other members of the Senate voted to convict, Mr. Harris said he hoped we hadn’t voted to convict just because it was cool (which was obviously our main reason! :-))…but that we recognized that a president must follow his or her oath of office, regardless what The People want.

            Donald Trump is dangerous to the republic precisely because there is a chance he might indeed be re-elected, and he has shown absolutely no interest in the rule of law and following his oath of office.

            There are probably 100+ million people the Republican Party can nominate in 2024 (when Donald Trump will be 78) and in 2028 (when Trump will be 82). It is no significant restriction to democracy that the Republican Party can choose any of the 100+ million people *except* Donald Trump in 2024 and 2028.

            1. Why do none of you who assert repeatedly that President Trump incited violence neither:
              A: Quote the lines where he indicated he wanted a riot or Congress to be attacked
              or
              B: Compare and contrast President Trump’s speech with the repeated and obvious calls to riot from Congresspersons throughout the entire year of 2020?

          2. We are faced with the biggest threat to the nation. The left and big tech are purging the opposition. This is what the fascists did Germany and Italy (the socialists and big corporations). The fake libertarians at Reason.com have only raised the feeblest peep against it. Instead they distract with articles like this.

        2. The constitution does not resolve every scenario. And distorting the constitution to reach a preferred result does not faithfully support it. A person doing the horrible things you propose is still subject to the criminal laws and civil liabilities – a much better punishment than banning one from running for office. If he truly incited the mob or committed treason, the criminal law should suffice. And if it is an emergency, the House and Senate have the capacity, if not the willingness, to act consistent with the constitution. And why shouldn’t the people be able to reelect him if that is their choice?

  3. It’s all theater, which is clear. And Pelosi knows you can’t convict a former president, because the Constitution is clear that it only applies to current officers.

    1. It’s not even that, by trying to ram through all of his confirmations and his legislative agenda before the trial, they want to hold Trump hostage and hence silence any opposition.

      It’d work with RINOs, I don’t think it would work with Trump.

      And if Liz Cheney is now talking about impeaching Harris, don’t tell me that Cheney is getting a lot of grief from constituents…

      1. And then if you have a few more things like this occur — leftists conspiring to violently attach MAGA — the national mood will change quickly. https://www.theblaze.com/news/daniel-alan-baker-fbi-arrest

        And SCOTUS respects the national mood.

    2. You said clear twice.

      Must be super clear.

    3. And Pelosi knows you can’t convict a former president, because the Constitution is clear that it only applies to current officers.

      If that was true, presidents could resign when it became clear that they would be convicted (e.g., Richard Nixon) but then run again if they thought the mood of the country had shifted.

      1. Nixon actually could have, he hadn’t yet served two full years of his second term…

        1. Nixon actually could have, he hadn’t yet served two full years of his second term…

          Yes, so in the case of Nixon, I think the only reason the House did not impeach and the Senate did not convict, was because in that instance, it was clear that Nixon could never be re-elected.

          In this case, the Cult of Trump is strong. I think it’s possible he could get re-elected. That’s why the Senate should vote to convict, to ensure that Trump can’t run again in 2024 or 2028.

        2. No. The first sentence of section 1 of the 22nd amendment precludes getting elected more than twice, even if you don’t serve very long in one or both of the two terms to which you get elected.

          “No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of the President more than once.”

          -dk

          1. Yes, you’re absolutely right. Nixon was in his second term when he resigned before he could be impeached and removed from office. So he couldn’t have run for another term anyway.

            My initial point was that Nixon resigned before he could be impeached and removed from office.

            So if it had been his *first* term, and he saw he was going to be impeached and removed from office, according to the theory that presidents who are no longer in office are no longer subject to impeachment and conviction (because they are no longer presidents), Nixon could have resigned in the middle of his *first* term, and waited to run in a second term, when the anger at Watergate had blown over.

            This is actually a plausible scenario–a president committing and impeachable offense late in the first term, like Trump, then resigning and trying to run four years later. This is exactly why a president who is impeached by the House towards the end of his first term should be tried in the Senate, and if convicted, prevented from ever running again for any federal office.

            1. I suspect that if Nixon had been in his first term this possibility would have been in general public discourse, although of course there’s no way to know for sure.

              -dk

              1. Yes, let’s take a hypothetical in which the Watergate scandal had been timed such that Nixon was told that he would be impeached and the senate would vote to remove him from office ~3 months before the 1972 election.

                If he could indeed simply resign to avoid being convicted by the senate–i.e., the senate could not vote to convict because Nixon had resigned–then it would be a very good strategy for Nixon to resign, and then see about running again in 1976, or even 1980, when theoretically the outrage about the Watergate scandal would be lower. After all, he would have been the tender age of 63 in 1976, and only 67 in 1980.

                That would have been terrible for the country, and even the Republican Party. It would demonstrate that a president–particularly a popular president–could violate the Constitution and simply resign to run again at a later time.

  4. Wait, you actually thought they believed what they were saying about Trump? How gullible are you, anyway?

    If they had believed anything they had been saying about Trump over the last four years, they would have behaved radically differently, not just over the last few days, but all along. The House members would all be wearing body armor and surrounded by armed guards. The Capitol would had hugely better security. Their families would have been in hiding.

    Basically nothing they have done over the last four years even began to suggest they believed what they were saying about him. It was all theater, and transparently so.

    And you fell for it?

    1. It’s far worse than that: ” What did House Speaker Nancy Pelosi and the other leaders in Congress know — and when did they know it — about the possibility for violence and the Pentagon’s pre-attack offer to send National Guardsmen to reinforce the Capitol Police?”
      See: https://justthenews.com/government/congress/three-critical-questions-about-capitol-siege-remain-unanswered

      Trump wasn’t told — Pelosi apparently was — so if we’re going to talk culpability here, she has a whole lot more than this. Even without the highly suspicious removal of the panic buttons.

      In fact, Pelosi herself could wind up impeached of sorts here — all it will take is for someone like Seth Moulton to credibly claim that she was partially responsible and file a motion to vacate the chair.

      Pelosi just barely won reelection as speaker, and her members are rattled — justifiably so, I know what it is like to have the police rescue you out of a situation like that. Moulton is a veteran (USMC-Iraq) and has already run for Speaker once before. He’s built a coalition of veterans in the House and he leans far enough to the left to be palatable to the Four Horsewomen of the Apocalypse.

      Then things would get interesting.

    2. They built a big wall to protect the capitol. Because walls don’t work.

      The leftist liars and the leftist true believers share one thing: no use for fact, truth, or reality.

    3. Brett Bellmore : “Wait, you actually thought they believed what they were saying about Trump?”

      We thought Trump would try to overturn a presidential election he lost. The cult members who comment here scoffed; TDS they said. Who was proved right?

      For two months Trump has continually lied about the election, using the grossest incendiary rhetoric to sell a fraud hoax. He’s attached the very core principle of our democracy – an orderly & peaceful transfer of power after an election – with narcissistic and obsessive lying. He’s filed scores of junk lawsuits, being interested only in the noise they generated to help sell a lie to marks. He’s peddled fraud charges that were blatantly false, then repeated them over & over after they were disproved. He’s bullied state lawmakers to abandon their legal obligations and procedures to change vote counts in his favor. He demanded the Vice President commit a clearly unconstitutional act, then sicced an enraged mob on him when he refused. And he led a rally that sent a mob to the Capitol to disrupt the election’s certification – a mob fueled by two months of lying inflammatory propaganda.

      Our Trump is a corrosive huckster conman who would attack the foundations of constitutional democracy itself rather than accept the people’s vote. Who’s your Trump, Brett? You’ve got your nose rammed so far his butt your vision has to be limited. The “stolen election” garbage is a crude obvious lie. Why do you support it?

      Is worshipping this huckster buffoon & accepting his lies worth damaging the constitution core of our government?

      1. And not one Jurisdiction, has even attempted to show how honest and fair the Election was. They hide the Machines like the Hope Diamond and obstruct every opportunity to show the machines work as intended. That the mailed-in ballots recorded had creases in the paper etc… If my honesty was questioned by 1/2 of the Population, I would be open and transparent. Not hiding and obstructing as all 6 states have done. How did mail-in votes get received BEFORE they were mailed? How did folded ballots miraculously flatten themselves? No answers except, shut up you crazy conspiracy theorist. Why did observers get ordered out and counting resume? Answer those questions honestly in Mid-November and, this would be different today. Saying F$!k off, we won. Is exactly how you get the results you see today. THIS is what you wanted.

        1. Tempe Jeff : “And not one Jurisdiction, has even attempted to show how honest and fair the Election was”

          Wow. You rarely see Freak Stupid in so stark a form as your reply. I guess I could ask whether you’ve stopped beating your wife and sexually abusing your children, then ask you to “prove” you aren’t. See Tempe Jeff, accusations come easy when they’re crude obvious lies.

          Or I could point to the three separate recounts in Georgia, including a hand count that verified the “machines work as intended”. Or the recounts in Michigan. Or the humiliating failure of scores of Trump lawsuits. Or the fact that Trump’s lawyers refused to even claim fraud in court filings (where there are are repercussions to lying), then loudly claimed fraud before the cameras (where there are no repercussions to lying).

          Or I could point to Trump’s history. Lose a primary to Cruz – whine election fraud. Lose to popular vote to Clinton – whine election fraud. Appoint a election fraud commission in May of 2017; stock it with election fraud fanatics; head it with the über election fraud fanatic himself, Kris Kobach – then watch it fail miserably to find anything except the few score cases over decades already on record.

          Or I could point out Trump spent months before the election telling people in the clearest possible terms he would claim fraud if he lost. You hear about stuff like this happening : A conman tells his mark he’s going to take him for a ride. He warns him repeatedly what’s coming. And then the mark falls for the con anyway. You wonder how anyone can be so gullible & pathetic. Like you, Tempe Jeff.

          But why bother pointing out anything to you? You don’t give a shit about the truth. You don’t give a shit about the facts. You don’t give a shit about right or wrong.

          1. It simply doesn’t matter if you ‘hand recount’ votes that are tickets printed by a machine if the machine is falsely generating tickets.
            Dozens of experts in statistics and statistical analysis pointed out the problems with the votes being counted. The lawsuits failed on timing or on process errors. Multiple lawsuits were thrown out simply because they were not brought forth prior to the election. Multiple lawsuits prior to the election were not allowed to be brought forward due to technical errors.
            None of these are ‘humiliating failures’. They are evidence of corruption in local judges and/or intimidation in the case of the SCOTUS.
            Another fact of the matter is that several states used the wrong political organ to change voting laws less than a year prior to a critical election. The constitutions and governmental rules of those states clearly stated which division of government in those states had the right and the responsibility to change laws related to voting. Democrats violated the constitutions of at least four states in their machinations. This will all come out in the next few months. And if Biden hasn’t yet been Clinton’d by the DNC, he will be removed from office.

  5. One more time.

    Name the 17 pubs who will vote to convict; or eat shit and die.

      1. I can’t name but two or maybe three pubs who would vote for conviction. Romney is one. Lisa is a possible second one and there may be someone lurking in the woods. On the other hand I give Manchin a better chance of voting against conviction than Lisa is to vote for it.

    1. Romney, Sasse, Toomey, Murkowski, Collins, Rubio, McConnell, and if McConnell breaks you can probably find 10 more.

      1. Remember that it only requires a 2/3 vote of those present. If a bunch of other GOP senators agreed that Trump should be impeached but were too cowardly to vote for that, they could just stay home that day. If ten others stay home, then Schumer only needs to find ten, not 17.

    2. Name the 17 pubs who will vote to convict;…

      Why is that necessary?

      Just because O.J. Simpson was acquitted of the murder of Nicole Brown Simpson and Ron Goldman, doesn’t mean O.J. Simpson didn’t do it.

  6. Can Pelosi issue a Nulle Prosque in an impeachment — her case is so rapidly falling apart that she may well have to.

    On a most basic level, there is no way that Trump could have possibly done what he is accused of (inciting the riot) if the FBI is publicly admitting that it (a)warned her Sergent at Arms about it days in advance and (b) he (i.e. she) denied the FBI the ability to do anything about it.

    The FBI is not only arresting people for conspiracy but BLM activists. There are credible reports that this was organized — see: https://thefederalist.com/2021/01/14/i-saw-provocateurs-at-the-capitol-riot-on-jan-6/

    Pelosi impeached an innocent man!

    This will eventually blow up in the Dems faces…

    1. It won’t. They don’t care about truth.

      When it comes out that they all lied, like when they said Hunter’s laptop was “Russian disinformation” they all smile about how they got away with it again.

      Not a single one of them spent 1 second expressing regret about telling or repeating that lie. They don’t even pretend to regret it.

    2. Nulls Prosques are banned under HIPPA.

  7. “I thought the House should have impeached Trump immediately after the riot, before the electoral count even resumed. If the president posed an immediate danger to the republic and the Congress, then there was no time to waste.”

    You now that you see that you were wrong you no longer support impeachment, right?

    1. Kazinski,
      He did not say that at all. But the argument of “clear and present danger” gets weaker very fast.

    2. With the exception of the President and Vice-President, all impeachable officials are judges or presidential appointees. Who have no timeline for their termination. The former are for life, as in till death do they leave, or upon their desire to retire, the latter serve at the pleasure of the President. The President and Vice-President have timed terms. They are automatically removed at the end of their term or their death if it happens before hand. Trump has been legally removed from office via the Constitution. There is no more that should be able to be charged to him.

      1. Trump has been legally removed from office via the Constitution. There is no more that should be able to be charged to him.

        Except that he should be disqualified “…to hold and enjoy any Office of honor, Trust or Profit under the United States:…”

        1. This could be fun, Say a House and Senate are controlled by one Party. A Uni-Party. They could impeach anyone that was elected or served in Federal Govt. in opposition. Preventing them for running for office? So, the only Candidates to run against them would have to have NO experience as an Elected Official. An out-sider, if you will that would be opposed by all in Washington. Wow, how thought-provoking. Probably a metaphor, in there somewhere.

          1. This could be fun, Say a House and Senate are controlled by one Party. A Uni-Party. They could impeach anyone that was elected or served in Federal Govt. in opposition.

            In this situation, a president has taken actions (twice, in fact) that caused him to be impeached by the House. The second set of actions culminated two weeks before the end of his first term.

            It’s simply nonsense to propose, “They could impeach anyone that was elected or served in the Federal Govt. in opposition”.

            Nowhere did I propose that the House should be able to vote to impeach a president who had completed his or her first term in office.

            Let me guess…you’re a Trump supporter?

    3. Kazinski : “If the president posed an immediate danger to the republic and the Congress …. (etc)”

      Jason Lee Steorts, today at the National Review :

      “Trump has made a sustained effort to shred our nation’s lawful and established mechanisms for selecting a president and transferring power. He has manipulated millions of voters and radicalized an unknowable number of them with his endless, lying claims of widespread election fraud. He has tried to badger and threaten Georgia election officials into committing election fraud. And all of this, culminating in his January 6 speech to the crowd that became an insurrectionist mob, knowably undermined confidence in the election and raised the possibility of political violence”

      “Trump’s misdeeds have made a formerly unthinkable disregard for the Constitution something real at the highest level of our politics. They did not enable him to seize power, but who is to say that future conditions will not allow another president to use such tactics more successfully? It’s shocking how much of our public life Trump’s failed effort at election-stealing has managed to corrupt. Would you have thought, six months ago, that more than half of the House Republican caucus, including its leader, would object to congressional certification of the Electoral College vote on no factual basis whatever, as if it were their duty to entrench the delusions of their constituents rather than tell the truth to them? Would you have predicted that a former national-security adviser and retired lieutenant general would call for declaring martial law, having the military seize voting machines, and rerunning the election? And if that happened this time, what might happen next?

      Trump laid down an arrow that, if followed, would lead to tyranny. Impeaching and disqualifying him would be the best way to reverse that arrow”

      1. Would you have thought, six months ago, that more than half of the House Republican caucus, including its leader, would object to congressional certification of the Electoral College vote on no factual basis whatever, as if it were their duty to entrench the delusions of their constituents rather than tell the truth to them?

        Yes, I think that’s frightening.

  8. More importantly, how many angels can sit on the head of a pin?

    The recent election is considered by many — may well, armed essential Americans who produce the food, water, and energy consumed by others — to be flawed. A mere statement by those who do not find the election to be flawed is simply that: a mere statement … and worse, a mere statement likely to be ignored.

    The voice of the minority must always be heard (even if ultimately ignored) and that fact is particularly true when the minority and majority are essentially equal in number. Going a step further, a majority is foolish to ignore the voice of a minority which controls the basic needs of life. History alone determines who is “right” and who is “wrong” — and history often concludes that fomenting insurrection was the proper course.

    I’m not taking sides on any current issue… I’m merely pointing out that (for example) John Brown is not considered the most evil person in American history, despite the fact that he was guilty of insurrection. Interestingly, Brown was opposing laws which effectively _permitted_ slavery while modern insurrectionists are opposing laws which effectively _require_ the slavery of some to meet the needs of others.

    1. What faculty may wish to worry about is that there essentially is an attempt to deny Academic Freedom to those who believe that the election was rigged. Academic Freedom is the right to profess truth as you see it and that is exactly what they are trying to deny to Donald Trump.

      If this is successful, it will be a dark day for academia. People such as Critical Race Theorists could find themselves in jeopardy as well because truths they profess (e.g. CRT) are also generally considered to be wrong. I think they *are* wrong — and dangerous — but I don’t want to eliminate free speech and Academic Freedom to silence them…

      1. Other than Prof. Volokh, the Conspirators over the years have expressed very little concern about the silencing of those who disagree with them. I can’t really think of an instance.

        1. Totalitarians eagerly silence dissent.

        2. Well, they haven’t said anything about Chapman University forcing John Eastman, a professor and former dean of the law school, to resign for merely speaking at Trump’s rally.

          See: https://www.insidehighered.com/news/2021/01/15/chapman-professor-who-spoke-jan-6-pro-trump-rally-retires

          1. If they say anything they’ll be next.

            Not that they would.

          2. They of course did not “force” him to resign. He chose to. They would have had a very tough time forcing him to do so.

            And of course he did not “merely speak” at Trump’s rally. He told Goebbelian lies at Trump’s rally, after urging Pence to help Trump stage a coup in the first place.

            1. And your comrades at Middlebury didn’t “force” Alison Stanger to go to the emergency room. She chose to.

    2. mydisplayname : “The recent election is considered by many … (meandering gibberish) … to be flawed”

      Yeah, flawed because your guy lost – full stop, end of bullshit. Your threats are comical. Your concern trolling a farce. There’s nowhere close to a majority for your childish fantasies. do you honestly think otherwise? The trash & riffraff who rampaged thru the capitol represent only freaks. If you think any percentage of Americans will follow garbage like that you’re truly deluded.

      Trump told you a lie and you like lies, so you believed him. Maybe you’ll continue to believe, hugging that lie close to your chest like a timid child his teddy bear. Most people won’t though. They have lives to live in the real world.

      1. The Trash rampaging was your brethren. Hitler loved him some Reichstag Fire too. Who are the Jews today?

        1. I’ll make the same observation to you as I did to mydisplayname :

          There’s no deep state conspiracy here. No grand history-changing event. No stolen election or widespread fraud. No Reichstag fire and no Hitler. Just a huckster conman and the gullible fools who polish his shoe leather with their tongues. Like you, Tempe Jeff.

          Maybe there will be long-term corrosive effects from Trump’s attempt to sabotage a presidential election, but I doubt it. The natural common sense of Americans will assert itself; within six months most of this will an ugly memory mostly forgotten. The only people left believing the unbelievable will be a few whack-job freaks. People like you, Tempe Jeff.

    3. The recent election is considered by many — may well, armed essential Americans who produce the food, water, and energy consumed by others — to be flawed.

      OK, if they’re so upset, they should stop producing “the food, water, and energy consumed by others.”

    4. They produce water? Just because Trump pisses on your leg and tells you it’s raining, and you believe him, doesn’t mean he’s producing water.

  9. “This could be done even without exhibiting the actual articles of impeachment,”

    I doubt that: You impeach somebody by accusing them of something. Without the something being specified, there is no accusation, hence no impeachment.

    I mean, can a prosecutor indict someone without specifying a charge?

    This is virtually irrelevant, because the Democrats will be in charge of the chamber next week, and won’t care. And the current case against Trump is such a joke that he doesn’t need technicalities to get off, he just needs 34 Senators who aren’t determined to convict regardless of how weak the case is.

    1. “This could be done even without exhibiting the actual articles of impeachment,”

      Yes, by producing a copy of the 13Jan NYT headline https://www.nytimes.com/2021/01/13/us/politics/trump-impeached.html

      If NYT and WaPo don’t feature a story on the front page, it isn’t true.

    2. And the current case against Trump is such a joke that he doesn’t need technicalities to get off, he just needs 34 Senators who aren’t determined to convict regardless of how weak the case is.

      This is not an argument about the case for impeachment, it’s just a restatement of the rules.

  10. “What he’s been doing is contesting the election outcome to the bitter end.”

    This is, right at the moment, there isn’t a Senate to pass articles of impeachment to.

    1. Grrr. Cut & Paste error.

      The quoted text should be
      “Pelosi is doing it again. The House has voted to impeach and has approved an article of impeachment, and Pelosi has even named a team of managers to prosecute the impeachment case. But Pelosi has once again decided to sit on the articles and to not formally notify the Senate that the president has been impeached.”

      1. Of course there’s a senate to pass the articles to. The individual designated to receive exists and is easily findable.

        The senate doesn’t cease to exist on recess.

        1. The Senate hasn’t recessed in over a Decade.

  11. “Why hand argumentative ammunition to Trump’s defense team if you do not have to do so?”

    Because they are only interested in scoring political points and are not interested in actually removing Trump from office before the 20th nor are they interested in disqualifying him from future office.

    If they were actually interested in either of the later two outcomes they would be moving forward expeditiously.

    1. Agreed. If Trump is a danger to the republic, then Pelosi sitting on sending the article of impeachment is a violation of her oath to uphold the Constitution.

  12. Sounds theological. Did God create Satan?

    All nonsense, lunacy driven by hatred.

  13. formally notifying the Senate that the president has been impeached

    Hmm, notice to the Senate that notice has already been delivered to the Senate? If you are worried about traditional-view pickiness the message should be that the House has resolved to impeach the president, not that it has already done so.

    1. If the “notice to the Senate” is required, then Trump is not yet impeached.
      If the “notice to the Senate” is not required, then Trump is impeached, and the House’s part is done.

      One cannot have it both ways. As you point out, from the way Pelosi is behaving (and last time as well), the House has only resolved to impeach the President but has not yet done so.

    1. If you believe that you’re crazier than he is.

      1. Criminal complaint posted on DoJ web site:

        https://www.justice.gov/usao-ndfl/press-release/file/1355291/download

        What are you accusing the DoJ of exactly?

        1. I think he’s accusing you and the author of that page of being really stupid.

  14. To my mind, the only good reason to rush the impeachment and Senate notification is in case President Trump does or tries to do something so dangerous and crazy that even two thirds of the Senate feel the need to remove him, it can be done quickly. Otherwise, just go slowly and impeach him after he has left office.

  15. The Constitution doesn’t say that the Senate has to wait for a formal notification. Why can’t the Senate start a trial whenever it wants?

  16. I hope this Simon Says stuff doesn’t end up being decisive.

    The House voted an impeachment article. The Senators know this, just like the rest of the world knows it. Maybe they can’t *judicially* know it until the article is exhibited.

  17. If a grand jury indicts someone, then un-indicts the person before the court is notified of the indictment, is that a “no harm no foul” situation, and can the grand jury issue a new indictment?

  18. Hmm…
    Seems to me that someone is impeached when the House votes that (s)he is impeached. Pretty simple, really. Or am I missing something (IANAL)?

    1. Seems to me that someone is impeached when the House votes that (s)he is impeached. Pretty simple, really.

      This piece is saying that formal “impeachment” might only occur when the charge(s) are presented to the Senate. (IANAL.)

  19. I am not sure it will make a difference. If people looking for any high-sounding reason they can to declare the process invalid and vote to acquit don’t have this hround to do so, surely they will find some other.

    But I agree it wouldn’t hurt to eliminate this particular ground, and perhaps it might help.

  20. I am a curious person. Someone, anyone please provide links to any credible source with proof that DJT “violated” his oath of office.

    Just because you are in disagreement with any action or statement made by the (or any) POTUS, that will never rise to the level of a violation of his/her oath of office.

    “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

    Here is a oath I took a few times a while back.
    I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

    I WILL SUPPORT PROTECT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGANST ALL ENEMIES….

    SO HELP ME GOD.

Please to post comments