Impeachment

Legal Scholars' Letter Supporting Constitutionality of Impeaching and Convicting Presidents After they Leave Office

The signers include a wide range of constitutional scholars across the political spectrum, including Federalist Society co-founder Steve Calabresi.

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One of the main arguments against the impeachment and potential conviction of Donald Trump is that his trial and conviction (if any) will now occur only after he has left office. Critics, most notably prominent former federal Judge Michael Luttig, argue that this is unconstitutional.

Protect Democracy has recently posted a letter signed by over 170 legal scholars, setting forth the reasons why impeachment and trial of officials who have left office is in fact constitutional.

The list of signers is notable for its ideological diversity—unusual in an era when legal scholars' views on controversial issues are often polarized along ideological lines. Notable conservative and libertarian signers include Steve Calabresi (co-founder of the Federalist Society, and leading academic expert on executive power), Michael Stokes Paulsen, and my co-bloggers Jonathan Adler and Sasha Volokh. I myself have signed the letter, as well.

Another VC co-blogger, Keith Whittington, did not sign the letter, but has written an excellent article on Lawfare reaching the same conclusion. Keith is one of the nation's leading right-of-center originalist legal scholars. I myself previously wrote about the issue here.

Signers also include a large number of prominent center and left legal scholars (including Laurence Tribe, Martha Minow, Neil Siegel, and Rebecca Zietlow, among many others), and several prominent experts on impeachment, such as Frank Bowman and Brian Kalt (author of what is the best-known and by far the most thorough academic article on the subject of impeaching former officials).

Here is an excerpt from the letter:

We take no position on whether the Senate should convict President Trump on the article of impeachment soon to be transmitted by the House of Representatives.

We differ from one another in our politics, and we also differ from one another on issues of constitutional interpretation. But despite our differences, our carefully considered views of the law lead all of us to agree that the Constitution permits the impeachment, conviction, and disqualification of former officers, including presidents.

Our shared conclusion is supported by the text and structure of the Constitution, the history of its drafting, and relevant precedent. The Constitution allocates the "sole Power of Impeachment" to the House of Representatives, and the "sole Power to try all Impeachments" to the Senate. It provides that the "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." It further specifies that "Judgment inCases 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."

In other words, the Constitution's impeachment power has two aspects. The first is removal from office, which occurs automatically upon the conviction of a current officer. The second is disqualification from holding future office, which occurs in those cases where the Senate deems disqualification appropriate in light of the conduct for which the impeached person was convicted. The impeachment power must be read so as to give full effect to both aspects of this power.

Impeachment is the exclusive constitutional means for removing a president (or other officer) before his or her term expires. But nothing in the provision authorizing impeachment-for-removal limits impeachment to situations where it accomplishes removal from office. Indeed, such a reading would thwart and potentially nullify a vital aspect of the impeachment power: the power of the Senate to impose disqualification from future office as a penalty for conviction.

The fact that the position outlined in the letter is backed by such a wide range of experts doesn't automatically prove it is correct. Experts can be wrong, sometimes even spectacularly so. Nonetheless, for reasons I summarized in 2015 (long before the current impeachment controversy), it often makes sense for laypeople to extend experts a degree of deference when the latter are addressing matters within their areas of specialization, and expert agreement cuts across ideological lines (making it less likely that it is simply the product of ideological or partisan bias).

Even if the other signers and I are right about this specific issue, there are other potential objections to convicting Trump, both legal and pragmatic. The letter doesn't address those questions, though I have tried to do so myself in other writings (e.g. here and here). But the question of the constitutionality of impeaching former presidents has emerged as a major focus of debate, and the scholars' letter will, I expect, be a useful contribution to that discussion.

 

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  1. It seems to me that, even if only a current president can be impeached, that wouldn’t prevent the trial from occurring after he leaves office. The Constitution says a president can be impeached, but says nothing about when the trial must be held. And Trump was indisputably president when he was impeached. You don’t need to think that Bill Clinton could be impeached today to say the process should go forward.

    1. That’s my position, too: At least the impeachment has to take place while in office.

      “The 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.” He hasn’t been President since last Wednesday, so he can no longer be impeached.

      He’s already been impeached, unless you want to argue that it doesn’t happen until the impeachment resolution is delivered to the Senate, (For which there’s at least a little support.) in which case Pelosi really blew it. But it’s too late for them to impeach him a third time.

      1. He’s not in that office anymore — unless you think that mothers ought be able to murder 3-year-olds with impunity…

      2. Brett,
        The text is an “and” statement. Both impeachment and conviction must be done to the office holders mentioned in order to trip the punishment.

        Yes, Trump as already been impeached, but he was not impeached and convicted while sitting as president.

        F.D. Wolf’s post lays it out very well. If a person who is impeached but not convicted before leaving office can nonetheless be tried in the senate, why not a former office holder who was only impeached after leaving office? The power of impeachment is meant to get bad actors out of government so they can be tried in normal course of the law, it is not there to be a sort of super censure for partisan hacks to gum up the works.

        1. Both impeachment and conviction must be done to the office holders mentioned in order to trip the punishment.

          Given that the punishment required in the text of Article II is removal from office, the above statement is trivially correct. However, that text doesn’t say, one way or the other, whether impeachment and conviction is limited to those still holding office.

          1. Given that the punishment required in the text of Article II is removal from office, the logical conclusion is that the person convicted is an office holder.

          2. “However, that text doesn’t say, one way or the other, whether impeachment and conviction is limited to those still holding office.”

            The Constitution doesn’t mention anything about impeachment and conviction of non office holders. It only relates to office holders.

            If you want to claim that the constitutional powers of impeachment and conviction extend beyond office holders you might at least cite some text in favor of your claim instead of tossing out a non-sequitur.

            1. Given that the punishment required in the text of Article II is removal from office, the logical conclusion is that the person convicted is an office holder

              That makes sense if removal was the only permissible punishment. However, the possibility of permanent disqualification supports the thesis that impeachment and conviction can also apply to those no longer in office.

              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.

              1. The removal from office punishment can only apply to office holders. That there is a further punishment that might apply to office holders as well as former office holders and to those who never held office does not logically extend the impeachment and conviction powers to non-office holders.

                Do you seriously claim that since disqualification from future office could apply to anyone, the impeachment and conviction powers necessarily extend to persons who never held office?

                1. I am only arguing that someone who was impeached while in office can be convicted after he leaves office. I express no opinion on whether someone can be impeached after leaving office or impeached/convicted who never held office, other than noting the plain text doesn’t preclude it (you claim the existence of further punishment does not logically extend impeachment/conviction to non-office holders, but don’t present the logic behind your conclusion).

    2. And why isn’t a woman entitled to a post-partum abortion?

      Could it have anything to do with the fact that she is not pregnant anymore? And hence, perhaps that he isn’t President anymore?

      1. As expected, your analysis is wrong.

    3. Then, why not Obama under the 14th Amendment as they’re doing to Trump, couldn’t he be impeached then as well?

  2. “And Trump was indisputably president when he was impeached.”

    But now it’s moot.

    1. I think you would be absolutely correct if the only penalty is removal from office. But because the Senate can bar one from future office, that power would be rendered illusory if it could be avoided by resigning or running out the clock on an office before a senate vote.

      The impeachment power is not designed as punishment–that is for the criminal law–but as protection of the nation and constitution from those unfit to hold office. (Cf. Disbarment of attorneys) In general, the doctrine of mootness does not apply even if the immediate issue has been resolved, if it is capable of repetition. Trump and many of his supporters have all but promised that repetition is precisely what will be sought.

      1. None the less, we are confronted with the brute fact that Donald J. Trump is not President. He’s a private citizen, and the Constitution says nothing at all to suggest private citizens can be impeached. Sorry, too late, can’t impeach him again.

        But “impeachment” is just the indictment, literally an accusation. And that part is already done. Now comes trial, and the only qualification to be tried is that you’ve been impeached.

        1. I agree.

      2. So, expressing an opinion, even a firmly held belief by others is grounds for impeachment? Looks like a “Punish the many for the misdeeds of the few”, a.k.a. ‘”Sins of their fathers” doctrine is strong in some circles.

        When shall we expect the uniformed Thought Police to come a’knockin’ with: “Looks like you’ve had too much to think” a’rolling off their tongues?

    2. Nope. The congress which impeached Trump still sits. Still has sole power to answer all these questions too. What’s moot are opinions from folks outside congress, including the entire judiciary.

      Of course, nothing about the truth of that will in the least embarrass GOP Senate cowards from pretending the constitution ties their hands. They have been suckering their base for a long time, they are practiced at it, and confident it will work again.

      1. Of course, by that theory the House could impeach YOU, and the Senate convict, rendering you incapable of holding future office.

        Who cares what the Constitution says, beyond that “sole power” line?

      2. Nope. The congress which impeached Trump still sits. Still has sole power to answer all these questions too. What’s moot are opinions from folks outside congress, including the entire judiciary.

        Yes, SL. The kids on the playground who say they get to make the rules get to make the rules. Neener neener?

      3. Nope. The congress which impeached Trump still sits. Still has sole power to answer all these questions too. What’s moot are opinions from folks outside congress, including the entire judiciary.

        So suddenly SCOTUS has no say on questions of the nature and limits of the authorities granted to branches of the federal government by the U.S. Constitution? Which of the many voices in your head managed to convince you of that?

    3. Bingo. So 170 legal “scholars” are wrong.

      The text is clear. Impeachment and conviction can only be applied to CURRENT officers.

  3. You’ve heard the expression “fake news?” Now we have “fake scholars.”

    1. How does the Senate obtain in personam jurisdiction over Trump as a ‘former’ president, or in his present capacity as a private citizen?? Senate does not have power to summon a private person to their chambers for their perverted political enjoyment and harassment. Talk about fake legal scholars promoting discord where non exists.

      What if the Senate starts a trial but Trump does not show up? What remedy does the Senate have to bring him before the tribunal? Like none. Some jews are just so jewish they can’t think with any logic, just a constant desire to inflame conflict where none exists. Of course the framework of the Constitution is not based on jewish agendas of screwing up the host society.

      There is a small country in the eastern Mediterranean which is a repository for such poor behaviour and twisted thought.

      1. He doesn’t have to show up. He refused to show up for his first trial.

        Kindly fuck off with your anti-Semitism. Nobody loves you. Nobody wants you around.

        1. Nobody?

          The Republican-conservative-Trump electoral coalition courts and appeases bigots.

          1. No, that would be the CRT/BLM crowd that courts and appeases bigots… plus you.

        2. He refused to show up for his first “trial” because McConnell refused to allow a real trial, and there wasn’t a whole lot of point in showing up for an up/down vote where he wasn’t allowed to present a meaningful defense.

          If Schumer wants a real trial, (I can’t imagine he will.) then Trump will show, because he’ll find the discovery and cross examination great fun. The Democrats would not find it so fun.

          So, it’s not going to be anything like a real trial. Kangaroos will be involved.

  4. I don’t know if Thomas Reed Powell actually said this, but whoever said it was onto something: “If you can think about something which is attached to something else without thinking about what it is attached to, then you have what is called a legal mind.”

    It’s a useful skill when you’re *obliged* to consider only one aspect of a situation.

    But what obliges these signatories to opine on whether the Senate has jurisdiction over Trump, while avoiding comment on whether Trump should actually be convicted?

    What’s to stop them from discussing the *entire* subject?

    Presumably, some of the signatories think Trump should be convicted, and some think he shouldn’t be.

    Well, then, instead of signing a joint statement, why can’t these scholars issue their own opinions on *all* the issues of the impeachment?

    1. I am assuming because that is the only thing they wanted to comment on. One does not have to comment on every aspect of an issue to be taken seriously. Should I have to comment on every aspect of a court proceeding because I think one specific aspect was done incorrectly?

      1. “I am assuming because that is the only thing they wanted to comment on.”

        But *why* would they want to be neutral on convicting Trump? Presumably they have views on the issue, and I doubt they’re shy about sharing those views, it’s just that they can’t all sign a joint statement because some want Trump acquitted and others want him run out of town on a rail.

        1. They collectively publish their opinion on one question and not on the other, because they have agreement on one question and not on the other. What is so remarkable about that?

          1. It’s remarkable that they supported an initiative supported by an outfit called Protect Democracy, on whose Web site I found this:

            “Towards Non-Recurrence: Accountability Options for Trump-Era Transgressions

            “…In light of the scope and scale of transgressions perpetrated by Trump administration officials, should the U.S. pursue accountability for wrongdoings?” etc.

            https://protectdemocracy.org/project/towards-non-recurrence-accountability/

            1. “IV. ACCOUNTABILITY HOW?
              Which instruments are available to generate accountability?…

              “COMMISSIONS OF INQUIRY…

              “INVESTIGATIONS & PROSECUTIONS…

              “VETTING & LUSTRATION…

              “PUBLIC APOLOGIES…

              “PROFESSIONAL SANCTIONS…

              “V. ACCOUNTABILITY BY WHOM?
              Who are the appropriate parties to pursue accountability?…

              “Public officials & civil servants….

              “Victims’ groups & affected communities….

              “Religious figures & other moral authorities”

              1. And just to make clear, “The [legal scholars’] letter was organized in part by Protect Democracy…”

                https://protectdemocracy.org/update/constitutional-scholars-letter-try-potus/

                1. And here’s another curious thing – Project Democracy’s press release doesn’t cite the sentence in the statement that

                  “We take no position on whether the Senate *should* convict President Trump” etc.

                  This sounds like a scheme to provide trans-ideological political cover to vote to convict.

                  1. Pretty much. You see a lot of that.

                    Look at the blog, Take Care: “Ensuring the President “shall take Care that the Laws be faithfully executed””

                    On half the topics, they’re complaining that he IS enforcing laws that they happen to not like!

                  2. You seem to think you are onto something because some people who don’t like Trump helped “in part” organize the production of the letter and some other people who don’t like Trump signed the letter. Of course, it was also signed by people who, to one degree or another, have supported Trump.

                    The obvious answer to your question is not some deep conspiracy. Rather, the scholars thought this particular question was an important one and the answer to which does not depend at all upon whether you support Trump. If you can imagine, some people think there are more important things in the world that Team Trump, Team Red, or Team Blue. Some people actually, truly care about the structure of our government and, hence, the Constitution, regardless of which party gains tactical advantage in the short term from that construction.

                    These people who care about the Constitution more than any team, thought it important to cut through the partisan hackery with a bipartisan, ideologically-diverse letter stating what seems obvious to most exerts in the field and, also, a common sense reading of the Constitution.

                    The way to avoid making the scope of the impeachment power a simple partisan exercise is for people of diverse perspectives and commitments to speak with one clear voice: a President can be impeached and convicted after leaving office.

                    This doesn’t provide “cover to vote to convict”. It urges Senators not to find cover to vote to acquit in misconstruing the Constitution, to the detriment of the future of the country (as regardless of what is right here, one can imagine a scenario where it would be quite advisable to disqualify a future individual from holding office notwithstanding they left office before a conviction was possible). Instead, they should have the courage to vote to convict or not convict on the merits of the case, rather than creating a procedural escape hatch which, again, would weaken our Republic.

                    1. “These people who care about the Constitution more than any team” should sign their own statements on their own initiative, and avoid joining the efforts of one team or the other.

                      It’s not about conspiracy, but about gullibility.

                      I believe (a) the Senate has *jurisdiction* to try Trump so long as Trump was President at the time of impeachment, and (b) Trump should be acquitted.

                      I didn’t take too long for me to say that, did it?

    2. Cal Cetin: While the legal scholars certainly could discuss the entire subject, including the question whether the President should be convicted, that is a political question outside of their area of expertise. In law, it is appropriate and often mandatory for experts to limit their views to the question on which they are experts. Thus, it was appropriate and standard practice for the scholars not to opine on whether Trump should be convicted.

      1. I’m not so sure.

        For one thing, as I recently found out (see above), this letter seems to be part of a campaign by an anti-Trump group which wants to go after Trump and his associates.

        And for another thing, the substance of the charges is certainly something a legal scholar could comment on – Section 3 of the 14th Amendment for instance.

        1. Whether they felt they could comment on the substance of the charges, they felt it was important to comment with one voice on this particular Constitutional issue.

          You seem to be missing the fact that the authors wanted a letter whose signatories are ideologically and politically diverse precisely to avoid the charge you are making. This issue (whether conviction after leaving office is possible) is sufficiently important that the priority is getting the Constitutional question right rather than protecting Trump by subverting the Constitutional structure.

          The signatories likely do not all agree on whether Trump should be convicted and, if so, disqualified from future office. They do agree on this narrow question. And they think getting this narrow question right is important. So, they limited the scope of the letter in order to speak with a unified voice that was as diverse and as loud as possible.

          You should chill with seeing conspiracies behind every bush.

          1. You shouldn’t look under bushes, but check out the organization which helped sponsor the petition and see what use they’re making of it.

            Have fun with the totally nonpartisan “commissions of inquiry.”

            1. Here’s another nonpartisan question, connected to the first (but see the alleged Thomas Reed Powell quote above):

              Is the House abusing Section 3 of the 14th Amendment?

              Suppose that any time a public official (or former official) gave a rabble-rousing speech followed by a riot or riots, that person was permanently barred from holding public office again. This seems to be what the House is going for.

              Is this sort of rabble-rousing confined exclusively to one party? Or do we expect accountability to be confined to one party only?

              Better to nip this in the bud by saying Section 3 doesn’t apply, no?

              That’s just as important an issue for legal scholars to weigh in on. Though so far it’s been on an individual basis, not as part of an “across the political spectrum” petition sponsored by a pro-Trump group.

  5. Oh give it up! Jewish political argle bargle to aide the Marxists in preventing the return of the Trumpster? C’mon man!

    The due process of ‘impeachment’ whatever the jews think it is meant to be, removes the president from office as he holds immunity from suit as Prez. The process cannot remove Trump because he is no longer president. If Trump is guilty of inciting violence, erection (as jew boy Schumer thinks), treason, whatever, then he can be indicted by a grand jury, charged criminally and brought to trial.

    In reality the jewish discussion is just meant to annoy as there is not a 2/3 majority in the Senate…..so what is the point of the banter? Jewish annoyance?

    By the way, can someone argue to remove the Holohoax Museum from DC, talk about fake news!!

    1. Back to Putin’s troll farm with you – you need more training.

  6. I’m with Ilya….they should drag this out. This will make the Dems look really good

    1. Amos, that takes a chance. Nobody knows what evidence might turn up while delaying. If I were an unprincipled GOP Senator, cowering in the face of Trump-base anger, I would try to get it over with now, while I was still sure I could point to ambiguity in the evidence.

      1. There’s risk on the other side; They’re investigating the rioters, I mean the real ones, (Not the crowd of protesters playing tourists.) and who knows what will come out?

        I suppose you might find the smoking gun where Trump directs them to be sure to rough up Pelosi.

        You might also find out that the whole thing was masterminded by an FBI informant/provocateur, and the feebs screwed up on the “swoop in and look like heroes at the last moment” step.

        Uncertainty typically runs in both directions.

        1. Brett, uncertainty is the spice of life. Did you know there is a terrific game which tests players skills to manage uncertainty? It’s called poker.

          I read your comments, and for some reason they give me pangs of frustration. Your comment above wised me up. It helped me understand where those pangs come from. I’m sad, because you and I will never get a chance to test consequences across a poker table.

          1. I’m not much for poker, too much chance. I like analytical games like Mastermind. Chess is fun, too.

            1. I love chess, but life is much more like poker. When you bring in uncertainty, poker is the game. Chess is a perfect information game and there are precious few, if any, aspects of life involving perfect information.

              Given your comments here, I am not surprised (in a non-derogatory way, I love chess and Mastermind too) that you prefer chess and Mastermind to the equally analytical (if played really well) but much more uncertain game of poker. A game in which you can play optimally but still lose. It’s one reason I wish I had first loved it, because part of the discipline of poker is playing the best way despite “feeling hot” or being on a losing streak. It actually requires more analytical discipline than chess because, in chess, the game and your opponent impose discipline. In poker, you have to maintain discipline even when it seems you’ve been punished for it.

      2. Writing many days after you posted, I have the advantage of knowing that further investigation has provided substantial evidence that agitators were planning the assault on the capital weeks before the rally and that initial attempts to infiltrate the Capitol were underway before the alleged incitement occurred.

    2. Personally I can’t wait for “The Kraken: Part II.”

  7. Bleh…

    The Senate can either try to confirm Biden’s cabinet appointments and try to actually get stuff done…or hold an impeachment trial for a guy who’s not even in office.

    So the choice is
    A. Get stuff done.
    B. “Punish” a guy who isn’t in office for optics.

    Democrats choose B…

    1. Better than making new laws, I suppose.

    2. I believe they’ve suggested that the Senate could delegate actually conducting the trial to a handful of Senators, who would relate their conclusion to the Senate as a whole, which would then have an up/down vote on accepting it.

      No reason to have the whole jury waste their time, when all but a couple votes are already decided, after all.

    3. To be perfectly honest, B is the best outcome for we the people.

      Aside from whether or not Trump should be “punished”, it’s generally bad for we the people when Congress gets stuff done.

      1. Disaffected, defeated, anti-government cranks are among my favorite culture war casualties.

    4. The Senate could have been confirming Biden’s appointments for a few months now, but instead spent their time objecting to democracy and pretending the election didn’t happen.

      As usual, your partisan bullshit doesn’t match up with reality.

      1. Huh? How were they supposed be confirming Biden nominees during the Trump administration?

        1. You’re aware that confirming cabinet members is a multi-step process, right?

    5. Or, they can walk and chew gum, and do both.

      Or, they can do what they’re actually doing, which is confirm cabinet people first and then conduct the trial. (Not for optics, though.)

    6. Trump has been making bank with his martyr status this entire time. I’m sure he’s only too happy to have a trial where he can continue his war-by-other-means strategy. Whether or not the Republicans want him to is the real question.

      My sense of it is that the Republicans in Congress want to have their podium back. So, charges dismissed.

      It amazes me that The VC crowd continues to write on this issue. How about a blog on the Parler v. Amazon lawsuit? The judge in that case basically ruled that a 30-day notice contractual obligation didn’t have to be obeyed if one party to the contract decided unilaterally that the other party had broken the terms. Amazingly flawed reasoning, IMHO. From the VC, just silence. Curious.

      1. https://www.techdirt.com/articles/20210121/14045546097/judge-easily-rejects-parlers-demands-to-have-amazon-reinstate-parler.shtml

        Your understanding of the Parler v. AWS case is wrong.

        “Parler has not denied that content posted on its platform violated the terms of the CSA and the AUP; it claims only that AWS failed to provide notice to Parler that Parler was in breach, and to give Parler 30 days to cure, as Parler claims is required per Section 7.2(b)(i). However, Parler fails to acknowledge, let alone dispute, that Section 7.2(b)(ii)—the provision immediately following—authorizes AWS to terminate the Agreement “immediately upon notice” and without providing any opportunity to cure “if [AWS has] the right to suspend under Section 6.” And Section 6 provides, in turn, that AWS may “suspend [Parler’s or its] End User’s right to access or use any portion or all of the Service Offerings immediately upon notice” for a number of reasons, including if AWS determines that Parler is “in breach of this Agreement.” In short, the CSA gives AWS the right either to suspend or to terminate, immediately upon notice, in the event Parler is in breach.

        Parler has not denied that at the time AWS invoked its termination or suspension rights under Sections 4, 6 and 7, Parler was in violation of the Agreement and the AUP. It has therefore failed, at this stage in the proceedings, to demonstrate a likelihood of success on its breach of contract claim.”

        Speaking of amazingly-flawed reasoning: correct your own deficiencies before making ignorant remarks about the supposed failings of others.

        1. If AWS terminate immediately upon notice then having a 30-day notice obligation in its service contract is moot. That’s the part of the reasoning that is flawed. The judge basically has given AWS carte blanche to just declare a customer in breach of contract and POOF, their customer is wiped off the Internet.

          Now that we know that /this/ is how AWS’ contractual promises are going to be treated in court, it puts every one of their customers on notice that they, too, can suffer the same fate in an instant.

          As someone who runs a tiny, non-profit operation on AWS, I am alarmed beyond words. I even sent them an email asking for clarification. Their rather chilling reply was essentially that as long as I don’t do anything wrong, I have nothing to fear!

          That had the exact opposite effect of what they intended. It scared the beebees out of me.

          AWS is not a safe place to host content. They can turn on you for any reason they choose, and the courts won’t do anything about it. You won’t even get a grace period to move. Nope. Just gone, Baby, gone.

          1. “If AWS terminate immediately upon notice then having a 30-day notice obligation in its service contract is moot. That’s the part of the reasoning that is flawed. The judge basically has given AWS carte blanche to just declare a customer in breach of contract and POOF, their customer is wiped off the Internet.”

            Perhaps you should cite the contract, as the Judge did, otherwise your claim that the reasoning is flawed is easily dismissed.

            https://aws.amazon.com/agreement/

            The contract is quite clear. The Judge’s reasoning has nothing at all to do with it. If you are in breach of AWS policy, they can suspend if they want, or they can terminate immediately.

  8. What I like best about another impeachment trial is how it will bring the country together.
    Unity, or else!

  9. “The list of signers is notable for its ideological diversity”

    And people wonder why the public is increasingly convinced that Shakesphere was right about lawyers…

  10. I do commend Senator Schumer for making it clear today, on the Senate floor what this impeachment is about.
    Senators will have to decide if Donald John Trump incited the Erection”
    – Charles Ellis Schumer

    It’s been obvious for a while Democrats have a hard on for Trump, I’m glad it’s finally been acknowledged.

    1. Best post in this thread.

  11. I know this idea is way off base, because who ever heard of someone going into politics riding the coattails of a parent or other relative…

    …but maybe if former President Trump is disqualified from holding office in the future, one of his kids (Don Jr.? Ivank?) can pick up his mantle.

    1. In a low-education, high-bigot, can’t-keep-up community, sure.

      1. Sounds like California. But Trump is hated over there…

  12. Just more fake, pretextual misuse of legal gibberish by Deep State agents. The Deep State does not want to face the unique celebrity and charisma of Trump. Nitpicking and fake legal utterances should be criminalized, with the penalties of perjury.

  13. If the libs want to to continue to expend their political capital with “get Trump” then by all means go ahead. Push a Senate trial into March and get Republicans to realize everything that you have done for the last four years was a desperate attempt, that got increasingly desperate as time passed, to get one man solely because you created this public image of him being Literally Hitler.

    I’ve got the popcorn ready….this is going to get interesting…

  14. Somin has been the chief spokesman for Libertarians Against Liberty for some time now. He and his cohorts are driven by personal animus toward Trump, though I realize his hatred blinds him to this.

    An actual libertarian would read a grant of governmental power to the Senate narrowly, not as expansively as possible. He would side with the prosecutors every time, finding every denial of due due process to be permissible. BUT TRUMP!!!! is different.

    Who will preside over this trial? I bet when they ask Chief Justice Roberts to preside, he’ll refuse. After all “the President” is not on trial, but a private citizen is. So, Kamala Harris? Would Somin see any conflict of interest there? I doubt there is any deprivation of Trump’s due process rights that Somin would object to.

    The sole precedent cited for trying a former official in the Senate is the 1876 impeachment trial of Secretary of War William Belknap, as if the (real) motivation there was not the forthcoming election of 1876. The Democrats, shut out of national politics since the Civil War had captured the House majority in the 1874 elections. And, after four consecutive losses in presidential elections, they liked their chances in 1876.

    The House had begun impeachment proceedings in February 1876. Secretary Belknap tendered his resignation on the morning March 2, for the express purpose of avoiding impeachment. Later that same day, the House impeached him. During the Senate trial, House managers argued (on the question of jurisdiction) that Belknap had been in office on March 2, the House had impeached him on March 2, and that the day was not to be divided into fractions.

    One of Belknap’s attorneys at the trial was former (and future) U.S. Senator Matthew Carpenter, considered to be an authority on constitutional law. During the trial, he stated:

    It is important, however, that every step in this proceeding should be taken with anxious circumspection. What yon do here will be followed in other cases. And if you shall finally decide that impeachment lies against others than officers of the United States; decide that when a citizen has once held a Federal office, he remains subject to impeachment by an opposite administration, for conduct not previously defined as crime; without limitation as to time, assert a jurisdiction from which the grave alone can give immunity; and hold that when brought here for trial, the law fixing his offense is to be declared for the first time, by the judges before whom he is on final trial ; and add to this the further doctrine, now contended for, that the trial is to be conducted without regard to forms and usages familiar to the people— we, as counsel for this respondent, wish to have it appear of record that principles so dangerous to liberty were not established with our silent acquiescence, but against our solemn protest.

    One can decide on his own whether Sen. Carpenter or Prof. Somin defends a position more consistent with constitutional liberty.

    1. That’s a great quote from Carpenter. Thanks.

  15. Irrespective of the merits, I really hate these letters, and the accompanying posts hyping how all these wonderful and prominent scholars from across the political spectrum agree on this or that policy issue. Academics ought to strive for unique and distinctive contributions to the body of thought in their fields. This tendency to seek areas of consensus and then celebrate that consensus with flabby, groupthink-driven “open letters” (“despite our differences, our carefully considered views of the law lead all of us to agree . . .” – give me a break) strikes me as unscholarly.

    If Calabresi, Tribe, Somin or whoever has something insightful to say about this topic, great. But precious few people, outside of the signatories to the letter, care to hear the self-appointed stars of academia sing “We Are the World” together every time an opportunity comes up to remind their peers how much they dislike Donald Trump.

  16. Senators are under oath at all times when sitting to try impeachments. Does a Senator who has previously made an assertion under oath (perhaps during the Clinton impeachment trial) face criminal perjury penalties for revising such an assertion? If so, the standard for conviction is almost insurmountably high given the current body of Senators.

  17. I an not a lawyer and can’t comment on the constitutionality of impeachment in this case. However, I can say that the last decade has taught me that you can get a large number of scholars or former government officials to support almost any idea ranging from good to awful in a signed letter. Do these letters matter to anyone except those signing them at this point?

    1. Outside the content of the Ten Commandments, the entire legal system is mere lawyer feelings. Their most intense feeling is to pursue rent seeking. Name a social pathology, it furthers lawyer rent seeking. They are the most toxic occupation in the nation, far more damaging than organized crime.

  18. Just because something can be done doesn’t mean it should be done.

    Important question: Why did Gerald Ford pardon Nixon?
    So that the Watergate scandal would end and the country could heal. Continuing to punish Nixon would have been counterproductive.

    What Nixon did was infinitely worse than what Trump did, which, under my understanding, wasn’t even a crime. When things spilled over, he backtracked and called for people to go home that same day.

    To compare, Harris continued to encourage violent riots, including posting bail for those arrested for rioting, AFTER people had already died.

    We know which lives matter. Not white lives, black lives, or blue lives. Congressional lives are the only ones that matter at all.

    1. Even if not a crime, the rioters were provoked by two months worth of lies from Trump. Some form of bipartisan formal rebuke would help heal the nation.

      The one thing the Senate should do is further investigate and bring to light is what Trump’s actions were after the riot began.

      1. A rebuke which has already happened.

        An impeachment isn’t a rebuke. It’s a criminal trial.

        You mean Trump’s very public actions, which he said “You’re special, go home”? What is there to investigate? You can’t try and say that his public rhetoric drove people into a frenzy and then insinuate that there’s some secret actions that he could take in the background when his public actions were so brazen and blatant.

        1. A formal, bipartisan rebuke has not happened.

          Trump made no public statements for almost two hours after the riot began. It took another hour and half on top of that for his “you’re special” video to come out. What was he doing? Some reports have him being pleased and delighted by the mob. Others have him calling Senators Lee and Tuberville to lobby them to make more objections to the vote counting. What was his involvement, or lack thereof, in getting additional law enforcement on the scene. Inquiring minds need to know.

          1. You make claims like that, then go provide some evidence. We’ll wait.

  19. I’m curious if the phrase “… and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States” actually applies to *elected* office, and if it does, if this is an imposition that is presumably done by the voters rather than by Congress itself.

    Meaning we know, with the comments floating around about the possibility that President Obama was not qualified for office because he was not a naturally born citizen, that this was something to be sorted out by the voters rather than imposed by the Federal bureaucracy. (I seem to recall that position being expressed by one of the authors of The Volokh Conspiracy.)

    And we have seen other offices where a convicted felon was voted back into office by the voters.

    So even if the Senate were to convene and hold a trial then find Trump guilty and disqualify him from holding “an office of honor, trust or profit”–would that only disqualify him from (say) being appointed as Ambassador to Nowhereistan, but not explicitly disqualify him from running for President again? After all, it seems that courts and appointed officials seem hesitant in going against the will of the voting public.

    1. The word “or” is key here. If the office comes with a salary it’s covered.

  20. “…The fact that the position outlined in the letter is backed by such a wide range of experts doesn’t automatically prove it is correct…”

    We live in era where such “widely backed by experts” letters are almost certainly not the product of their expertise but rather the prostitution of their expertise for political gain. For example, the list of doctors who wrote that BLM protests were more important than social distancing, the letter by former high ranking intelligence officials that the Hunter Biden revelations “looked like” a Russian disinformation campaign, and so on. What matters is not who signed it but rather the reasoning contained therein. In this case the reasoning mostly convincing.

  21. After 48 years as a member of the bar, I’ve learned that the term “legal scholars” is defined as “a group of career law professors who wish to remain on good terms with other career law professors, especially those who might be involved in tenure decisions and other personnel matters.”

    1. LOL! Or, as they say in ‘Jersey: “Badda Bing, Badda Boom!”.

  22. My Dear Somin,
    May I ask you, as one of the leading lights of this Enlightened Opinion Group, a tertiary question? If so, it would be this: In such a case as we’re now discussing, just how much “Constitutional Protection” does the accused enjoy? Looks like the “Speedy Trial” part is satisfied, no doubt, but what about a chance to present a full and fact-filled, meaningful defense? After all, if the defendant is accused of fomenting an insurrection by spreading intentional lies (which is different than spreading unintentional lies one would presume) wouldn’t the accused be allowed to show evidence that they were not lying? If not – why not? Or does the concept of “Fairness” fall into the Bill Clinton bucket of: “It all depends on what the meaning of [Fairness] is?”

  23. Why not impeach Richard Nixon while we’re at it? I see no exception in the Constitution for the deceased.

    1. “After you, my dear Alphonse.” “Oh no, after you, my dear Gaston.” I haven’t thought of that pair in 50/60 years. “Thanks for the memories.” (Yes, that’s another one.)

  24. The only thing the legal scholars letters prove is legal scholars are political too or they just suffer from TDS. Even on the Supreme Court the Judges seldom have a unanimous decision. All this post is showing is Trump hate, while signaling support for a leftist dictatorship. How can these people call themselves libertarians?

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