More from Prof. Michael McConnell on Impeachment

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Prof. McConnell passes along this follow-up, responding to Prof. Michael Ramsey at The Originalism Blog:

The Volokh Conspiracy recently published my view that, based on the explicit text of the Constitution, officers who have been impeached by the House of Representatives while in office can be tried by the Senate even if they have left office in the meantime. The public debate has been over whether the House has power to impeach a former officer, but that is irrelevant to the current situation. The House impeached President Trump on January 13, 2021, one week before his term expired. No one has suggested any problem with the timing of that resolution. If the Senate has power to try "all impeachments," as Article I, Section 3, Clause 6 says, it has power to try the Trump impeachment. There seemed to be no textual counter-argument. Or so I argued.

It turns out there is a textual counter-argument. Michael Ramsey contends in The Originalism Blog, that under founding-era practice, "a President is not impeached (under the Constitution's original meaning) until the Articles of Impeachment are delivered to the Senate." Other distinguished scholars – Andrew Hyman, Noah Feldman, and Keith Whittington – have made essentially the same argument. They support this argument on the basis of historical practice, in which the House would pass a resolution authorizing its managers to "impeach" the officer before the Senate, implying that impeachment does not occur until they make the formal accusation and thus begin the prosecution. Only starting in 1912 has the House instead passed resolutions impeaching the officer, and then communicating to the Senate that it has done so. Ramsey et al. contend, based on originalist interpretive principles, that the original understanding must prevail over a subsequent change in practice.

I find this argument unpersuasive. First, it cannot be squared with Article I, Section 2, Clause 5, which states: "The House of Representatives . . . shall have the sole power of Impeachment." This clearly indicates that it is the House that impeaches as a constitutional matter, not the managers. The House, as a body, can act only by means of passing a resolution. That happened on January 13.

Second, there is no reason to think the prior practice reflected a judgment that the constitutional term "impeachment" means presentation of the charges to the Senate, rather reflecting a choice of form. At most, it suggests that the House may delegate its power of impeachment to its managers, not that the constitutional term "impeachment" necessarily refers to the presentation of charges by the managers.

Now, if in any particular proceeding the House frames its resolution in such a way as to postpone its legal effect until some future date, such as when the managers present charges to the  Senate, then presumably the impeachment would not take legal effect until then. (By analogy, the House presumably could pass a resolution that "effective next Wednesday Jane Doe is impeached.") That may have been what happened in the early impeachments on which Ramsey et al. rely. But that is not what happened on January 13. On January 13, the House passed a resolution stating unequivocally "[t]hat Donald  John Trump, President of the United States, is impeached for high crimes and misdemeanors and that the following articles of impeachment be exhibited to the United States Senate."

In sum: the Constitution vests the power to impeach in the House as a body, not in the managers. The House acts by passage of a resolution. Unlike its practice in the founding era, the 117th House passed a resolution on January 13 stating that President Trump "is impeached." There is no good reason to say that the House, which has "sole power" over this matter, does not impeach when it passes a resolution saying the officer is impeached. That means Mr. Trump was impeached while still in office, and accordingly the Senate has the power to try the impeachment.

NEXT: Today in Supreme Court History: January 31, 2006

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  1. That’s an awful lot of motivated reasoning. The House shall have the sole power of impeachment — but that does not mean that impeachment happens when the House votes on the issue, rather than when it presents charges to the Senate.

    Considering that our impeachment process was intentionally based heavily on the British model, down to the phrase “other high Crimes and Misdemeanors”, and that the British model considered someone impeached when the accuser went before the House of Lords, it verges on bad faith to claim that “[t]here is no good reason” to disagree with the House’s self-aggrandizing interpretation.

    1. I think the bigger problem is that the body that impeached no longer exists — as the Senate did not act before the 116th Congress dissolved, the impeachment (like all incomplete legislation) died.

      In other words, the 117th House can present it’s own impeachment resolution to the 117th Senate, but it can not present the existing one, because that has expired. Hence they gotta impeach him a third time, which makes all of nuances moot because it all will be done after he has left office.

      1. Trump was impeached by the 117th House.

      2. The Senate still exists. Where in the Constitution does it say that its members must be identical at the time of impeachment and at the time of Senate trial? (Its members, after all, can change for reasons other than an election.) And where does it say that an impeachment is like incomplete legislation? You can’t just make stuff up.

  2. “Ramsey et al. contend, based on originalist interpretive principles, that the original understanding must prevail over a subsequent change in practice.”

    RIP the “slippery slope” argument in constitutional cases.

  3. I will continue to express the opinion that I find law professors completely pathetic on this subject. The Senate will do what it does, it will do so based on political calculations, and not one Senator will give two craps what ANY law professor has to say about it except to cite something to support what they already decided to do.

    And not only that, but this is the way it is supposed to work. The framers believed that politicians, not lawyers, courts, and law professors, should decide this one. The only reason we keep hearing from law professors is because they are a bunch of attention whores who can’t stand that they have been cut out of the process.

    1. But tell us how you really feel. Don’t hold back.

    2. “except to cite something to support what they already decided to do.”

      But that’s the whole point!

      Senators are in need of arguments to support the outcome they desire. Law professors are in need of citations to help bolster their name recognition and prestige within their field. Law professors supply the arguments, and in return Senators provide the citations. It’s a symbiotic relationship where each party gets what they want.

      1. Senators don’t need arguments.

        Look at Mitch McConnell’s entire Senate career. Did he ever really need arguments? As long as a Senator’s political constituents like the results, arguments have never mattered.

        1. Nihilism is not an argument.

        2. Senators don’t need arguments.

          True, but they do need some sort of plausibility, or political cover, or whatever you want to call it, maybe just a dodge.

          What the law professors are providing is not an argument, but rather a way for Senators to avoid addressing the issue – to avoid having to make an argument on the substance.

          What they get in return is publicity – maybe a TV appearance, or an op-ed, or a chance to testify to Congress. At a minimum they might get quoted somewhere, so they can add a line to their CV.

    3. The legislators have the power to impeach but that doesn’t mean that they shouldn’t try to exercise it in compliance with their understanding of what the Constitution requires. Indeed, each branch swears an oath to that Constitution and has a duty to try to follow it.

      1. I don’t buy that at all. The entire point of giving it to politicians was that the framers understood that they would act based on political considerations. So the oath they take only requires them to decide impeachments on political grounds.

        What you are saying is what law professors would like to impose on Senators, but the Senators don’t and shouldn’t give a crap and they have the power and the law professors don’t.

        1. Do you believe there are any constraints at all from the text of the Constitution and the oath the Senators take to uphold it?

          Two questions:

          (1) The Constitution says that a federal officer (including, but not limited to the president) can be impeached for “high Crimes and Misdemeanors.” Does that mean literally anything. If the House impeaches, and the Senate removes, a federal officer for belching in public, have they upheld their oath of office?

          (2) The Constitution say that the Senate has the sole power to “try” impeachments. Can they use any procedure at all? A flip of the coin? Trial by combat*? If the Senators vote to use one of those two, have they upheld their oath of office?

          ____________
          * Certainly a no-holds-barred wrestling match between Donald Trump and Nancy Pelosi would be entertaining. But not what the Constitution contemplates.

          1. “If the House impeaches, and the Senate removes, a federal officer for belching in public, have they upheld their oath of office?”

            No, they have violated their oath to uphold the Constitution. But they can violate it. Our system relies upon government officials choosing to act in good faith. This includes Supreme Court justices, although they at least, in theory, can be impeached and removed from office for violating their oath of office.

            1. I agree with you. The fact that a decision is not reviewable does not mean the person is not duty bound to act in good faith according to the provisions of the Constitution.

              Which is why debates about the meaning of the Constitutional provisions are not a complete waste of time.

              And, BTW, the corrollary of “Congress can impeach and remove for whatever it wants to” is “Congress can NOT impeach or NOT remove for whatever it wants to.” What is the basis for criticizing those who did (and likely will again) vote not to remove/disqualify Trump, if the whole exercise is purely political? Put differently, if there are zero principles involved, then you cannot criticize the Senators for violating their principles.

              It is no different than a no-confidence vote in a parliamentary system. You cannot say that an MP who votes Yay or Nay has violated any principle, since the question is purely a political one.

              1. I think the Constitution makes certain questions basically not a part of the legal system at all. This is one of them.

                The Constitution does not impose any constraints on Senators and indeed reposes in them this power precisely because the framers wanted political considerations to control and legal reasoning to be ignored.

                So no, i think Senators are obeying the Constitution when they completely ignore legal arguments on this.

          2. Whether impeaching and removing a federal officer for belching in public violates an oath of office is a matter of opinion. Not surprisingly, I think if you ask 1000 people, 990 or more will say yes (count me among them). But, the only opinions that count are the ones of the representatives themselves (and later on, the voters).

            The answer to trial by coin flip or combat is the same. However, the Senate is barred from using a procedure that convicts by a simple majority vote, and courts will enforce that requirement.

            Based on your post posts, I suspect you believe the fact the representatives have the final legal say has no bearing on the analysis. And that would be the case if there was an underlying absolute truth. But because this issue is strictly a matter of opinion, we must pick some authoritative opinion.

            1. Some opinions are better than others. Being “strictly a matter of opinion” does not mean that the authoritative opinion is right, only that it’s authoritative. Justice Robert Jackson said, “We are not final because we are infallible, but we are infallible only because we are final.”

              1. Opinions on matters that aren’t objective facts are neither right nor wrong.

              2. That’s correct. An opinion on this issue informed by a Senator’s constituents is better than one informed by legal argumentation.

                1. Absurd, both historically and logically.

            2. “I suspect you believe the fact the representatives have the final legal say has no bearing on the analysis.”

              Yes and no. It is possible to have discretion within certain parameters, and yet violate your oath if you breach those parameters. To take an example from litigaiton, district judges have broad discretion as to how to conduct a hearing on whether to enter a preliminary injunction. They can have a live hearing with witnesses, they can have discovery, or they can decide the issue on the papers. But at some point, they abuse their discretion if they act arbitrarily. A district judge that decides a preliminary injunction with a flip of the coin will be quickly, and rudely, reversed by the Court of Appeals.

              To “try” an impeachment has an objective meaning, even if there is wiggle room as to how to conduct the trial. Flipping a coin ain’t it.

              Likewise, “high Crimes and Misdemeanors,” even if it is not limited to actual criminal activity, means serious breaches of public trust. Belching in public ain’t it.

              1. I am not persuaded that either how a trial is conducted or what constitutes a high crime is an objectively verifiable fact.

        2. “the framers understood that they would act based on political considerations”

          1. If that were true then why have any other language but ‘Congress shall have the sole power of impeachment by 2/3 vote?’

          2. The Founders wrote and said often they wanted our representatives to be more statesmen and less politicians, remember this was before political parties.

          3. The Founders also wrote and said often that all branches of government had a duty to interpret and follow the Constitution according to their best faith interpretation.

          1. The Framers were themselves politicians and not statesmen. They knew exactly what giving the decision to politicians meant.

            1. You’re just mind-reading vs. what they actually said and wrote. We could just skip the middle man and you could tell us what’s what I guess…

        3. The entire point of giving it to politicians was that the framers understood that they would act based on political considerations.

          That is not a reasonable reading of Federalist 65.

    4. Nothong prevents Supreme Court Justices from completely ignoring law professors. And if Trump gains a second term, the Republicans retake the Senate, and enough old-time senators have been replaced with sycophants, he might be able to drop having to rely on the Federalist society to vet his jusdges and get people like Lin Wood comfirmed to the Supreme Court, people he can have confidence will be personally loyal to him.

      If he does that, then what law professors say about what the Supreme Court should do for the portioks of the Constitution it gets to inreviewably interpret will become just as practically irrelevant as what they currently say about what the senate should do for the portiojs that are solely the Senate’s responsibility. If the Supreme Court finds it implicit in the concept of ordered liberty for Donald Trump to bevand remain president, this will be no more subject to any further review than what the Senate does in an impeachment trial.

      What names will you call law professors than? Will you say they are involving themselves in matters that are none of their business? Will you say that the fact that presidents have a right to appoint and seantors to confirm whomever they damn well please to the Supreme Court – a President can make his horse a justice if he wants to – means that the Sipreme Court is an inherently political body and law professors ahould just accept that they are irrelevant to it?

      I would disagree. The Framers may have been naive. But they imagined that Senators, like Justices, would take their oaths seriously and take care regarding the duties the constitution imposed on them. The fact that they may choose not to live up to those ideals in no way makes them irrelevant.

      1. The courts don’t ignore law professors because courts are supposed to use legal reasoning to decide cases.

        The Senate is not supposed to use legal reasoning to decide impeachments. It is supposed to use politics. That’s why it was given the power.

        1. Yes, they’ve traditionally done this. But they needn’t bother with such things. If a future Trunp or Trump-like administratiom gets to appoint sufficiently loyal sycophants to the Supreme Court, they could issue an opinion resembling Carl Schmidt’s infamous “The Fuehrer Upholds the Law” essay justifying Hitler’s 1934 mass assassination of his political opponents in The Night of the Long Knives as legal, just, and fully constitutional. And nobody would be able to review it.

          If one takes the position that if the constitution doesn’t provide a mechanism for some other body to review than anything a body does is OK, then that, too would be OK. It would be unreviewable by any other body.

        2. The Senate is not supposed to use legal reasoning to decide impeachments. It is supposed to use politics. That’s why it was given the power.

          Wronger than wrong.

    5. And your opinion will continue to be wrong. Both parts of it.

      “Scholars should not express views about the best interpretation of the law because people might not listen to them” is dumb enough to be a Dr. Ed take. And no, the framers did not believe that politicians should make decisions based on whim.

      Whether a particular act substantively merits impeachment and conviction therefore might be a political question. Now, contrary to what you pretend, “political question” does not mean “uninformed decision.” But this isn’t even a question about the substantive merits of the issue; this is a question about the procedure set forth in the constitution. Now, sure, you can extend the political question doctrine to say that whether a former officeholder should be impeached fits within it. But the issue being debated is not whether he should be, but he can be, consistent with the constitution. Trump’s senators aren’t saying, for the most part, that they don’t think Trump should be impeached. They’re not saying that based on their research, they’ve made the constitutional decision that this isn’t permissible. They’re saying that they’ve been told it’s unconstitutional.

      1. Trump’s senators aren’t saying, for the most part, that they don’t think Trump should be impeached. They’re not saying that based on their research, they’ve made the constitutional decision that this isn’t permissible. They’re saying that they’ve been told it’s unconstitutional.

        It seems to me they are really saying they’ve found someone to tell them it’s unconstitutional, and have decide to accept that rather than the much more popular position that it is perfectly constitutional.

        My opinion is that this decision was not based on legal advice, but rather on politics. They didn’t act on legal advice. They found – easily enough – legal advice to back up what they wanted to do.

        1. Sure, that’s their internal reasoning, but it’s not their public reasoning, because they know that wouldn’t fly. Given that they are relying on this fig leaf, it’s reasonable for people who know better to say otherwise. If the politicians want to say, “Well, I don’t care; this is ultimately a political decision and it doesn’t matter what the constitution says,” then they can. But they should be forced to own that.

          1. Yeah, which is why the folks creating that fig leaf suuuuuuck.

  4. The argument that Prof. McConnell makes is less important than the argument that to allow a Senate trial only of a sitting president would be to prevent the Senate from disqualifying the impeached president from holding federal office again. It is absurd to believe that by resigning minutes before a Senate vote, a president could avoid disqualification from future office. Those presidents who most expected to be convicted, perhaps because they’d committed the most egregious high crimes and misdemeanors, would be the ones who would not be disqualified.

    1. This practical argument, which just happens to be supported by the text as McConnell, that arch-liberal!, points out, handily wins the day. This is not unlike the self-pardon argument.

      It takes logical contortions and blindness to good governance to take the position that a President can commit a heinous crime on federal property, pardon himself, then resign moments before conviction by the Senate and be insulated from all consequences.

      The motivated reasoning comes from those who are willfully blind to the consequences of their position (a President above the law) in order to protect their preferred politician of the day. It’s pathetic.

      Trump was impeached. The Senate will try him. Setting aside the substantive merits, this is how it should be (procedurally).

      1. Speaking of self-pardon arguments, I haven’t seen it observed that a self-pardon would be the equivalent of a prospective pardon — an authorization to commit crimes in the future. If a president knows on day one of his term that he can pardon himself on the final day of his term, then he has, in effect, a prospective pardon from day one. Somehow, I don’t think that the pardon power encompasses that.

    2. Or in response to Ramsey, it is absurd that a president could avoid disqualification by resigning between the time the House votes to impeach and they formally present the impeachment to the Senate.

  5. Still stupid. Still a sham. Still a show trial. The United States lurches one step closer to becoming a Banana Republic…

    1. Your opinion constitutes nothing but name-calling, because you offer no basis for it. I just pointed out a non-show aspect to the trial: It would enable the Senate to disqualify him from future federal office.

      1. Last time I checked if you wanted to impeach someone the people taking that action had to come to the table with a really good reason, not the reverse.

        Also I did not call anyone a name. I made fun of the trial itself, but I think you need to go back to the drawing board with your justifications if this is the best you got.

        1. I don’t know where you checked to see that the House had to have “a really good reason” to impeach someone. The Constitution, which is where you should have checked, states that the requirements are “Treason, Bribery, or other high Crimes and Misdemeanors.” The House gets to decide whether any of these have been committed.

          I didn’t say that you’d called a person a name. I agree that you called the trial names: “stupid,” “sham,” “show.” You still do not justify those names with arguments. “[Y]ou need to go back to the drawing board” is not an argument either.

          1. Your argument about power and authority is actually childish in nature and does not need to be seriously addressed. Technically they can impeach the President for farting too, but that does not make it an effort that must be supported no matter what.

            There is also no need to explain why something that is so obviously a stupid, sham show trial is when that is evident to anyone with common sense.

            1. You are the one who stated that the last time you checked “if you wanted to impeach someone the people taking that action had to come to the table with a really good reason, not the reverse.”

              It’s bears mentioning, but no more, that apparently, you think the situation is the reverse and, so, the really good reason is coming to the table with people who want to impeach. Or you aren’t good at English?

              On the substance, Jarndyce quite reasonably pointed out what, if you cared to actually check, the Constitution says about the reasons. Now, you could have made a substantive argument about whether the stated reasons are good ones, whether the reasons have a sound factual basis, or whether the reasons meet the Constitution’s definition, but you didn’t do that. You just retreated to an unspecified argument that they aren’t good reasons which is as childish as the interpretation you assumed for Jarndyce, who pointed out, again quite reasonably, that the body with responsibility for determining what good reasons are is….not Jimmy the Dane, but the U.S. House of Representatives.

              Make a substantive argument instead of pretending to be whatever it is you are trying to pretend to be.

              Shorter version. Jimmy the Dane, you are embarrassing yourself.

    2. Every accusation is a confession, Jimmy supports the side that wanted executive and legislative officials to ‘recalculate’ and ‘find votes’ for and at the urging of the President based on the laughable theories of election stealing that amount to ‘waah, I was ahead in the 7th inning and then all these runs occurred for the other side, unpossible, fraud!’

      1. Maybe I don’t find voter fraud nearly as funny as you do….

        1. Jimmy, whether voter fraud is funny or not, you have to find it first, and no one has.

          For you, speculating about it, or even asserting it, doesn’t mean much. When the loser of a presidential election continues it, with nothing to support the assertions, that is an attack on the sovereignty of the People. Treason itself is no more impeachable than a public attack on the People’s sovereignty.

        2. Jimmy, whether voter fraud is funny or not, you have to find it first, and no one has.

          For you, speculating about it, or even asserting it, doesn’t mean much. When the loser of a presidential election continues it, with no proof in sight, that is an attack on the sovereignty of the People. Treason itself is no more impeachable than a public attack on the People’s sovereignty.

          1. Oops, double posted.

          2. It is hard to find something when all the power structures are doing their darndest to stop any kind of honest inquiry. Makes one wonder, right?

            1. A key part of conspiracy theory thinking is: when there is no apparent evidence to point to, *that’s just more evidence of how deep the conspiracy is!*

              It’s especially absurd to think that the GOP pols and officials in AZ and GA (and, ultimately I guess WI, MI, PA, because the conspiracy effort got truly goofy and wide there in its desperate clutching for straws to soothe Dear Leader’s fragile ego) were ‘in on’ the Big Conspiracy. Most of them sacrificed their careers for standing up for professional values against Trump and his cultists’ petty, laughable efforts.

              That this ended in dudes wearing Viking helmuts running through the halls of Congress is apropos of this incredibly silly movement in American history.

              1. It’s especially absurd to think that the GOP pols and officials in AZ and GA (and, ultimately I guess WI, MI, PA, because the conspiracy effort got truly goofy and wide there in its desperate clutching for straws to soothe Dear Leader’s fragile ego) were ‘in on’ the Big Conspiracy.

                Don’t forget Trumpkin AG Bill Barr saying that there was no evidence. And the Trumpkin US Attorneys in Georgia. And Trumpkin consiglieri Rudy Giuliani, at least when he was actually in court.

            2. The MAGA idiot two-step:

              MAGA: I know for a fact there was fraud; the evidence is blatant.
              Intelligent, decent people: In fact, there’s no evidence of any fraud.
              MAGA: Well, that’s just because they were making it too hard to find.

              Pick a lane. Either the evidence was obvious or they concealed it. (I mean, in this case, neither is true. There’s no evidence, and they didn’t take any steps to stop an inquiry. But no more than one can be true.)

        3. It’s certainly fitting that Jimmy here doesn’t distinguish between *theories* of voter fraud and actual fraud (or between laughable theories to be precise). That’s a summary of the entire problem with Trumpistas on this issue.

    3. Or a revolution.

      All the hysteria I keep hearing from the left makes me wonder what they know and I don’t. If they *really* think that we need the numbers of National Guard troops in DC that they are insisting on having there — what do they know???

      1. Yeah I am starting to wonder myself. It could be the left now just wants to turn DC into its police state stronghold and that will be part of our “new normal”, etc….

        Deployments like that are slow to wind up and March is not unheard of in terms of closing down shop. A lot has to happen behind the scenes to get everything in order. But, the Guard does not seem to be in a hurry to go home and DC is not in a hurry to send them home. It is like they are keeping them around for a reason….

        1. We are going to turn D.C. into a state, Jimmy, not a police state.

          With two senators.

          With Republicans welcome to propose candidates for those two Senate seats.

          Enjoy the American future, Jimmy.

          1. Doing so is going to be one more step to making the United States a Banana Republic. But maybe that is what we need in order to start fixing things.

            1. Wolverines! Amirite, Jimmy?

          2. No, you’re not. You don’t have the votes for that.

    4. I agree with you in part. The current trial before the Senate has devolved into a political show, and both sides have lost fidelity to the Constitution.

      Rather, we should proceed with criminal charges against Trump. The Georgia voter fraud law sounds like a promising avenue.

      There is an old saying: “If you come for the king, you best not miss.” In a Constitutional Republic, the Constitution is the king. It is what public officers swear to uphold. Trump came for the king, and missed. He now has to be made to suffer. A few years in jail would do wonders for those who would try to come for the king again.

  6. “It turns out there is a textual counter-argument…They support this argument on the basis of historical practice”

    Well, that doesn’t seem like a *textual* counter argument then…

  7. Once again the so-called conservatives face a momment of reckoning where they must confront a situation where their principles conflict with their political positions. And once gain they fail the test.

    A defining characteristic of Republicans is the narrow, textualist view of the Constitution. And that view is the one clearly reflected in its text as set forth by the original post here. But Republicans need an excuse to vote to exonerate Trump and so they have taken the opportunity to use public confusion about impeachment to argue he is technically off the hook since he is out of office.

    Most of the public believes that impeachment is the trial and removal from office of the office holder when in fact impeachment is the indictment which clearly happens when the House votes positive on the impeachment. And since the Constituton is silent on sending articles to the Senate and silent on the issue of trial of a person already out of office and since the Constitution specifically states a result, prohibition from future holding of office, there is nothing in the Constitution to base an argument that a person cannot go before the Senate trial after leaving office.

    To argue otherwise is to write into the Constitution words that are just not there, something today’s hypocritcal conservatives say they abhor. But that abhorrence wanes when it is someone they want to support, and hence their fealty to their principles wane. Just another reason why they command so little respect other than from the naked partisans.

    1. Except they don’t. They read it narrow only when they want to, but are more then happy to take things that they think are implied and declare it as it if was clear as day. Here are examples: Immunity for the president from even criminal investigations, the executive privilege (taking it as far as allowing the president to ignore Congress), immunity from common laws for religious organizations, the power of Congress to change the outcome of a presidential election, and reading “warrant” out of the 4A.

  8. The defining characteristic of Republicans is Trump is awesome.

    FTFY.

    I mean, take a look. A person can have an overwhelmingly conservative pattern of views and actions but if they do anything anti-Trump then they’re RINOs to be pilloried and primaried asap. That’s the test.

  9. This is all good stuff, but even if it is really constitutional (the present House probably wouldn’t care if it isn’t) is it a good idea? I have enough money to get roaring drunk every night of the year and so long as I don’t go driving, it is perfectly legal for me to do so. Even then, it’s a bad idea.
    The Democrats pursuing another impeachment will only solidify existing differences in order to use their power for retribution, all the while calling for ‘unity.’
    This can not end well.

    1. The only people who thought it was a good idea to impeach Trump again were urban Democrats who live in an actual echo chamber. Go outside the Beltway and people are just disgusted with their behavior. Wouldn’t surprise me if this in of itself loses them the House. Suburban Democrats are feeling the heat. I think it is fair to say that a decent amount of swing voters wanted Trump gone and now that he is they see little point in dragging the corpse through the mud again.

      1. No. People are disgusted with what Trump and his supporters did and want to see him accountable. If the Rs keep their head up Trumps ass then they will keep losing at the polls.

        1. So says the person who lives in an echo chamber….

          1. Oh yup, you got me, anyone who does not agree with you is in an echo chamber. Solid logic. The Rs did well under Obama by blocking every thing and then pointing out how bad it was that Obama did not get everything done he wanted, and voters are dumb enough buy it. They could win doing the same thing to Biden, but if they also keep up with the Trumpism lying and QAnon crap then they will lose.

          2. Also the R nuts belie that Biden will arrest them all and put them in camps, and good luck voting from a Bidencamp.

      2. The only people who thought it was a good idea to impeach Trump again were urban Democrats who live in an actual echo chamber.

        And every other Democrat, and ten Republicans.

    2. “I have enough money to get roaring drunk every night of the year and so long as I don’t go driving, it is perfectly legal for me to do so.”

      Not necessarily. Check the laws on provision of alcohol to (or acquisition by) habitual drunkards.

  10. Is the the Presidency an Office “under the United States”? Or are those offices all appointed by the president? That is can a person be disqualified from holding an office under the United States, and still be elected President of the United States?

    1. I doubt that any authority has answered that question, but it seems obvious that the presidency is an office “under the United States.” The president is a federal employee, and like all federal employees, he works for the United States. He is not a monarch, even though in too many ways, such as not permitting him to be indicted while in office, we treat him as one.

    2. Plausibly, no.

      “Officers”, per Article II section 2, are people appointed by the President, either with the approval of the Senate or without (in such cases where law provides that there is no Senate approval required). And Article II, section 3 provides that the President and Vice President can be impeached in addition to “all civil Officers”, rather than “all other civil Officers”. Similarly, Senator, Representative, and Elector, all also elected positions, are not grouped with “any office, civil or military, under the United States” by the 14th Amendment.

      So even if we agree that the House can impeach a private citizen, the Senate might not be able to disqualify Trump from election as a President, Vice President, Senator, Representative, or Elector.

      So, the Senate is holding a plausibly-unconstitutional impeachment trial in order to blatantly fail to actually impose a sentence that plausibly wouldn’t have any legal effect except to stop Trump from getting appointed to a job he wouldn’t want.

      And yet we have lots of nominally-respectable law professors who are not denouncing the whole exercise as a farce.

      1. The final clause of Article I, section 3, provides, “Judgment in Cases of Impeachment shall not extend further than removal from Office, an disqualification to hold and enjoy any Office … under the United States.” If does not speak of “officers,” as do the two provisions you quote. Its first use of “Office” applies to the president, so we must assume that its second use of “Office” does as well.

        1. Good try. Not sure that being able to try a former President for a criminal violation necessarily precludes that person from running for office. It seems fairly well established that even a prisoner can run for office.

          1. I don’t understand why you raise the issue of a person convicted of a crime (outside the impeachment context) or in prison can run for office, but I agree that he or she can, because the only limitations that the Constitution imposes is that he be a natural born citizen, “attained to the Age of thirty five Years and been fourteen Years a Resident within the United States.” (Art. II, sec. 1.) If he became president and were in prison, then a responsible VP (unlike Pence), would invoke section 4 of the 25th Amendment to have him declared “unable to discharge the powers and duties of his office.”

            1. (I added the missing “whether” to my previous comment.)
              I don’t understand why you raise the issue of WHETHER a person convicted of a crime (outside the impeachment context) or in prison can run for office, but I agree that he or she can, because the only limitations that the Constitution imposes is that he be a natural born citizen, “attained to the Age of thirty five Years and been fourteen Years a Resident within the United States.” (Art. II, sec. 1.) If he became president and were in prison, then a responsible VP (unlike Pence), would invoke section 4 of the 25th Amendment to have him declared “unable to discharge the powers and duties of his office.”

      2. It is this nitpick reading to argue the the Constitution means the exact opposite of what it says that is absurd. The president is an officer.

  11. “He is not a monarch, even though in too many ways, such as not permitting him to be indicted while in office, we treat him as one.”

    Can you imagine the mindset of persons claiming to be ‘libertarians’ arguing contrary to this here? Many liberals say that libertarianism is just a ‘front’ for some dark stuff, seems like a mighty general argument, but if they are going to line up and say things promoting he President as monarch, well, sheesh.

    1. As a matter of libertarian principle, he should be indictable.

      As a matter of Constitutional law, the Federal “executive power” is explicitly vested in just the President (distinct from how the judicial power is vested in both the Supreme Court and the inferior courts), and thus the President has a clear right to prevent anyone from using his power to prosecute him.

      The obvious solution is the restoration of the common law right of private prosecution, which the Supreme Court quite improperly stripped from the citizenry in Leeke v. Timmerman. Then any private actor who wished would have the opportunity to convince a Federal grand jury to indict the President and then prosecute him.

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