Impeachment

House Impeachment Managers and Trump's Defense Lawyers File their Impeachment Trial Briefs

The House brief does a solid job of laying out the case against Trump. The defense brief is far less impressive.

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This morning, both the House impeachment managers and Donald Trump's defense lawyers filed their respective trial briefs. The House brief is available here, and the defense brief here.

The House brief is an impressive and thorough analysis of both the facts leading up to the January 6 attack on the Capitol, and the various legal issues involved. On the former, it is worth emphasizing, as the brief does that the relevant evidence includes not just Trump's January 6 speech to the crowd that later attacked the Capitol, but his previous history of making bogus accusations of election fraud and condoning violence by his supporters. It is the combination of all three which makes Trump culpable, and which led some of his supporters to reasonably assume that he wanted them to attack the Capitol. As the brief notes, many of the Capitol rioters have explicitly said they did what they did because that's what they thought that's what Trump wanted.

The House brief also effectively addresses both of the major legal defenses offered by Trump's supporters: that a conviction would undermine freedom of speech, and that it is unconstitutional to try a former president. I have previously written about both issues at length (e.g., here, here, and here), and won't go over them in detail in this post. To my mind, the best short analyses of these two issues are by my Volokh Conspiracy co-blogger Keith Whittington (see here and here). Keith's writings are—deservedly—cited repeatedly in the House brief (which also includes some citations to writings by other VC writers, including a couple of my own posts).

By contrast with the House brief, the defense brief is short and mostly consists of assertions unsupported by either evidence or or legal argument. These flaws may reflect the fact that Trump's current lawyers only took over the case yesterday, after he parted ways with his original legal team over the weekend.

The brief contains a few notable whoppers, such as the claim that "[i]nsufficient evidence exists upon which a reasonable jurist could conclude that the 45th President's statements [about the election results] were accurate or not, and he therefore denies they were false." This simply ignores the overwhelming evidence of rulings by numerous courts rejecting Trump's bogus claims of election fraud, including ones authored by judges Trump himself appointed (a fact effectively summarized in the House brief).

The defense brief predictably raises both the free speech defense, and the claim that impeaching a former president is unconstitutional. But it fails to address any of the numerous flaws in these arguments pointed out by a variety of legal commentators across the political spectrum—and duly summarized in the House brief.

Trump's lawyers' brief also contends that the impeachment is unconstitutional because it is a "bill of attainder" (a law targeting a specific individual  for punishment). I will mostly leave this issue to those with greater relevant expertise. But I will point out that there can be no bill of attainder without punishment (usually for some sort of crime). Impeachment  and conviction inflicts no punishment, and does not deprive the target of life, liberty, or property. It is instead a mechanism for protecting the constitutional system against threats, by removing dangerous officials from office, and (as in this case) potentially barring them from holding office again in the future.

If this impeachment qualifies as a bill of attainder, the same would be true of virtually any other impeachment. After all, almost all impeachments target specific individuals. Removing or barring specific individuals is the whole point of the impeachment process.

Perhaps the best argument in the defense brief is the claim that the Impeachment Article combines several different issues into one charge, in the hope  of assembling the required two-thirds supermajority to convict, from senators who may not fully agree with the charge, but do agree with parts.

I think it might have been better to include a separate count for Trump's earlier efforts to pressure the Georgia Secretary of State into illegally overturning the election results in his state. But I don't believe this issue should be a deal-breaker for conviction. Senators can conclude Trump is guilty of inciting the insurrection even if they don't agree with all of the reasoning in the Article. Unlike in a criminal trial, which will often properly focus on technical details of specific charges, an impeachment vote is not a narrow legalistic process, but rather should be focused on the bottom line of whether defendant's actions justify removal from office (in the case of a sitting official) or being barred from future office-holding.

While the House brief is clearly superior to the crude and superficial work product of the defense team, I am not naive enough to think that this will make a major difference to the outcome. Impeachment is at least as much a political process as it is a legal one, probably more so. That's why Mitt Romney (in Trump's first impeachment trial) is the only senator to have ever voted to convict a president of his own party. Trump's second impeachment trial will almost certainly add to the count. But partisan bias—combined with GOP senators' fear of retribution by Trump's supporters within the party—seems likely to save Trump from conviction by the required 2/3 majority.

I don't doubt, by the way, that partisan bias plays a role on the Democratic side, as well. Few politicians are immune to it. But it is notable that the Trump impeachment has gained greater bipartisan support than any other impeachment of a president (with the possible exception of the potential impeachment of Richard Nixon in 1974), and that it has been backed by numerous right-of-center legal scholars and other commentators who have little, if any, love for the Democratic Party.

At this point, there seems little likelihood of a conviction, as 45 GOP senators recently voted against tabling a motion to reject Sen. Rand Paul's objection to the impeachment trial based on the claim that former presidents cannot be tried after they leave office. But some of those senators have indicated they are leaving their options open when it comes to the final verdict—including, significantly—minority leader Mitch McConnell. Only time will tell how many senators will vote to convict, though it is highly doubtful it will be enough to reach the necessary two-thirds majority.

NEXT: Presidential Shackling

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  1. “Senators can conclude Trump is guilty of inciting the insurrection even if they don’t agree with all of the reasoning in the Article.”

    The House had the chance of drawing up numerous articles, each with some alleged offense or legal theory backing up the charge. They drew up, IIRC, 11 articles with regard Andrew Johnson (who got off by what looks like bribery of Sen. Edmund “Profile in Courage” Ross).

    If this hodge-podge article doesn’t, as a whole, meet with the approbation of 2/3 of the Senators, who should pay the penalty? The House, I suggest, for omitting to subdivide their charge into separate articles.

    The House’s responsibility is the impeachment – that is, the charges. If they bungle that opportunity, the Senate shouldn’t be able to pull the House’s chestnuts out of the fire by convicting on some hypothetical article the House *could* have drawn up.

    1. Weather the articles are in one or separate does not matter, Trump will be convicted or not depending on Republican politics. Witnesses, evidence, and documents also does not matter that much (unless there is some smoking gun we don’t know about) because it was all broadcast on national TV. The Senators already have there minds made up and it is unlikely any will change there minds. The only thing that could have changed anything is that if Trump used the Big Lie as his defense.

      1. It’s still fair to assess the objective merits of the charge the House filed.

        1. fair, but not terribly useful.

        2. The use of the law for partisan political attack is unethical. The duty of prosecutors to avoid doing that applies to civil matters, not just criminal ones.

          That the sides are quoting members of the VC is evidence of suborning unethical conduct. They may reply, they were expressing their opinions, and have no control of the use of them by others. OK. That is also true of the pro-democracy rioters saying they were doing what Trump wanted. He had no control over them. They were not his agents. They had no contract, not even implied, nor any duty to him.

          1. What Nixon did was criminal, and serious. He probably would have been impeached and kicked.

            What Clinton did was criminal, but not serious. He was impeached but not kicked. At the time I was mad, being partisan like both sides are today. But a few years later I realized that was probably for the best given it derived from his affair, which was silly. Not good enough to thwart his election.

            Trump’s sound serious, but they have a tough time clearing the legal bar so easily hurdled by Nixon and Clinton.

            To get sufficient presidential supporters convinced he needs to go, to override the will of the voters, or to forbid them even the option in the future in this case, perhaps you need both serious and some legal infirmities that cannot be denied.

            Until that point, it’s just The Emperor’s New Clothes — “Can’t you see it? Can’t you see it??

            And that’s just politics, insufficient for this purpose. That people squeak, “Impeachment is all politics and doesn’t have to be actual illegality” is beside the point. If you struggle to convince the president’s supporters, the entire point of the 2/3 supermajority requirement, then it’s only politics.

            1. Clinton was perjury.
              People tend to forget that.

              And how much the Starr Report changed America.

              Remember that this was an era before on-line porn.

          2. Right. The underlying assumption that people are automatons or sheep is telling.

            They were just following orders

          3. But they aren’t using “the law” in the sense you are using it to engage in partisan political attacks. They are using political processes to engage in political attacks. Impeachment is a political process, not a legal one.

      2. Witnesses, evidence, and documents also does not matter that much….

        Yep. Liberals wanna convict. They don’t need no stinking facts, witnesses, or anything like that.

        1. Which is why Republicans objected to calling witnesses. Hey, waitaminnit…

          1. It’s just political theatre for the Democrats. You and I both know that any witnesses wouldn’t change any Democratic minds.

            1. And nothing will change R minds.

              1. I’m sure if you had actual evidence that Trump planned for the protestors to invade the capital, it might change minds.

                But…you don’t.

                It was a simple protest that got a little out of hand, because there wasn’t enough security.

                1. Trump’s bad conduct is more then just one speech on that day. You are spouting a lie that ignores everything he did between the election and Jan 6.

                  1. So, you don’t have any evidence he planned for the protestors to invade the capitol….

                    Here’s another one for you. What’s the difference between the 2021 protest, and the 2018 Kavinaugh protests?

                    1. The Kavinaugh protests were non violent, the protesters expected, and allowed themselves to be arrested, they did not murder any police officers, they did not break into the Capital, they were not trying to install an unelected president, they did not want to kill the VP or members of congress. They were annoying and disruptive, but that is it. But you know all of this, but don’t care because you would have been happy if the coup worked.

                    2. “they did not want to kill the VP or members of congress”

                      Except for the ones who did…

                      https://www.rollcall.com/2018/10/19/new-york-man-arrested-for-kavanaugh-confirmation-death-threats/

                    3. That guy was not even at the protests.

                    4. And yet…death threats.

                  2. So Molly now believes in “thoughtcrime.”

                    Trump feels like the election was stolen from him. Many women and persons of color feel that they have been discriminated against.

                    Care to speculate on where the Molly Standard would lead us on the latter were the standard you propose also be extended to the latter?

                    Remember the 1992 LA riots? The accused officers were found innocent, so everyone who complained about that should have been indicted for inciting the rioting?

                    1. His recorded call to the SoS of GA is alone enough to impeach him. That was a real crime.

                    2. If it was a real crime, prosecute him for it.

                      But I’ve read the transcript , there’s no crime there.

                    3. Brett Bellmore : But I’ve read the transcript , there’s no crime there.

                      Cult flunky to the very end. In contrast, here’s a pretty good description of the damage Trump has done to the U.S:

                      “Trump made a sustained effort to shred our nation’s lawful and established mechanisms for selecting a president and transferring power. He manipulated millions of voters and radicalized an unknowable number with his endless, lying claims of widespread election fraud. He tried to badger and threaten Georgia election officials into committing election fraud.

                      And all of this culminated in his January 6 speech to a crowd that became an insurrectionist mob. This makes him morally and politically culpable for the storming of the U.S. Capitol and its deadly results even if he did not specifically foresee or intend them.

                      People are dead because that mob believed what Trump said. His whole post-election course of conduct is the greatest violation in American history of the presidential oath of fidelity to the Constitution. Trump exposed a design flaw in the system: a dangerous incentive for impunity by a defeated president who doesn’t wish to yield power.

                      His misdeeds made a formerly unthinkable disregard for the Constitution something real at the highest level of our politics. They didn’t enable him to seize power, but who’s to say future conditions won’t allow another president to use those tactics more successfully? It’s shocking how much of our public life Trump’s failed effort at election-stealing managed to corrupt. Who would have thought six months ago that over half 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”

                    4. When people accuse someone of the being in a cult for politics, they are often retarded.

                  3. Trump’s bad conduct is more then just one speech on that day. You are spouting a lie that ignores everything he did between the election and Jan 6.

                    “bad conduct” is not high crimes and misdemeanors
                    The single article of impeachment is confined to Jan 6. That is the dems thoughtful reasoned decision as the best opportunity to get a conviction and removal from off…..sorry he’s already gone.

                    1. Says you.

                      And no, the article isn’t confined to Jan 6. It goes into the leadup, including touching on the pressure on Georgia.

                2. His guilt does not require that he planned for the invasion.

                  1. Brandenburg would disagree.

                    1. Maybe; maybe not. But the man had some damn fine concertos.
                      (Two & Five are my favorites)

                    2. Brandenburg does not apply to impeachments.

                  2. Thoughtcrime must be fun for impeachment.

                    1. Incitement is the act of provoking behavior.

                3. Now hold on a minute. Since when is it a requirement that Trump “planned for the protestors to invade the capital.” I don’t see that his intent is relevant.

                  He’s like the drunk who gets behind the wheel of a car and then kills somebody. He didn’t mean to kill anybody. It wasn’t intentional. He didn’t get out of bed that morning and say “I think I’ll go kill someone today with my car.” If that were the standard, nobody would ever be convicted of vehicular homicide.

                  Rather, the issue is that he said and did things as to which it was entirely predictable that the riot would follow. Show me anyone, Democrat or Republican, who was actually surprised by what happened on January 6.

                  1. “it was entirely predictable that the riot would follow”

                    Then we should be expelling Pelosi or removing the DC mayor instead for failure to get adequate security.

                    In fact you are merely engaging in post hoc reasoning. A riot happened so it was foreseeable.

                    Provide one prediction before the rally that a mob would break into the Capitol?

                    1. Bob, if you think Pelosi or the DC mayor should be removed, assuming there is a procedure for doing so, then let that proceeding be instituted and we can then have a conversation about it. But that conversation should be free-standing from this conversation, because for this conversation it’s just an attempt to derail a discussion about Trump’s culpability.

                      And the law of foreseeability does not require a prediction that there be a specific outcome. Just that there would be a bad outcome.

                    2. “Just that there would be a bad outcome.”

                      There was nothing foreseeable about it. DC had has plenty of rallies and marches to the Capitol that do not result in people breaking in. No one in authority believe anything “bad” would happen.

                    3. You said: “Then we should be expelling Pelosi or removing the DC mayor instead for failure to get adequate security.”

                      Care to explain? I do not understand how a DC mayor has any authority to secure federal property. Heck, she doesn’t even have authority to call up the national guard.

                  2. “Now hold on a minute. Since when is it a requirement that Trump “planned for the protestors to invade the capital.””

                    18 U.S. Code § 373 – Solicitation to commit a crime of violence

                    1. I don’t think that’s the statute under which he’s being tried.

                    2. He isnt being tried under a statute because the Democrat brief is a joke.

                  3. Now hold on a minute. Since when is it a requirement that Trump “planned for the protestors to invade the capital.” I don’t see that his intent is relevant.

                    I agree with your point, but not its applicability here. This wasn’t just recklessly getting behind the wheel while intoxicated. This was getting behind the wheel and deliberately driving into a crowd of people. (Kind of like the very fine people at Charlottesville did.)

                    Trump spent months lying, ranting and raving, and riling up his fanatic supporters. In the days leading up to this rally, he told them that Mike Pence could save them, then he told them that if Mike Pence wasn’t a pussy he would save them, and then he — along with the other speakers at his rally — told them that Pence wasn’t going to do it and they had to be strong and fight to stop the election from being stolen.

                    If Trump had been telling the truth, they’d have been justified in storming the Capitol! There was a massive conspiracy to steal an election, and nobody was doing anything about it! The courts had already refused. Politicians had already refused. What was left, except direct action, to save their democracy?

                    1. Now talk about how democrats and BLM led to the shooting of 5 cops in 2018, the 3p dead last year from BLM riots, etc. Let’s see if you’re consistent.

                      How about impeachment for scalise? The shooter directly quoted bernie sanders.

                    2. “What was left, except direct action, to save their democracy?”

                      I believe that was the line used when the Wisconsin State Capitol was occupied by protestors.

                    3. Jesse, this may be a difficult concept for you to grasp, but this thread is about Trump, not the Democrats and BLM.

                    4. Please be careful, Mr. Nieporent. The proprietor has indicated that he disapproves use of that word . . . by a non-conservative. I am unable to forecast whether the Volokh Conspiracy Board of Censors would consider you to be sufficiently liberal or libertarian to be censored or banned for using it.

                    5. Pathetic pearl clutching.

                    6. “Jesse, this may be a difficult concept for you to grasp, but this thread is about Trump, not the Democrats and BLM.”

                      No, it’s actually quite easy to understand that, when you’re trying to apply a double standard, you don’t want anybody to be allowed to point it out.

                      What puzzles us is why you think we’d feel any obligation to accommodate that desire. Of course we’re going to point it out, and not care that you think we shouldn’t.

                  4. NO! The crime was getting behind the wheel drunk.

                    What was Trump’s crime? Encouraging his supporters to exercise their 1st Amendment Rights?

                4. I don’t buy that it was a protest that got out of hand. This was more like Benghazi with terrorist using the protest for cover. I think we will find out that there was a lot of planning involved by some of the insurgents. The question is how much of that could be directly tied to Trump.

                  1. I think we’ll never find out, because the actual ‘insurgents’ were apparently under surveillance for some time. This implies that the attack can be more directly traced to the feebs screwing up. Like heck they’re going to shine any light on this scale of screwup.

                    It is extraordinarily unlikely that Trump directed this: It ended what little hope he had of overturning the election result, and predictably so.

                    I’ll grant that every movement has its morons, so you can’t rule out that the mastermind (/sarc] behind this thought it would help Trump. But unless they were pretty dumb they were probably aiming for the result they got: An end to Trump’s election fight, and complaints of election fraud made toxic.

                  2. The question is how much of that could be directly tied to Trump
                    About 1/100th the the amont of evidence President Trump conspired with Russia.

                5. A “simple protest that got a little out of hand.” The revisionist history has begun.

                6. FBI says Capitol invasion was planned four days in advance….

        2. Trump did everything in full view of the public, the facts are known. Also it was the Rs that refused to have witnesses during the first impeachment. Also I think the Ds are going to present evidence.

          1. “Trump did everything in full view of the public, the facts are known.”

            Which is why we know he’s innocent. There was no incitement. There was nothing resembling incitement. If you’re going to impeach Trump on his words, you need to impeach half the Democratic Caucus for their words to be logically consistent.

              1. So just to be clear, your position is that because Charles Manson avoided execution, that it was therefore unfair to electrocute Ted Bundy? You know, what about and all that.

                1. You know Charles Manson was in jail for life for his crimes, right? He didn’t get off with a $50 fine, a slap on the wrist or whatnot.

                  1. So just to be clear, your position is that because OJ Simpson got away with murder, that no one else can be convicted of murder? You know, what aboutism and all that.

                    1. Bernie sanders and scalise shooter. Go.

                    2. Just to be clear on your position here, it’s OK if you arrest and execute a black man for jaywalking, while ignoring the previous 100 white men who did it in plain sight?

                    3. Jesse, this may be a difficult concept for you to grasp but this thread is about Trump, not Bernie Sanders.

                      Armchair Lawyer, there are no 100 previous white men; none of your attempts at moral equivalence have been even remotely on point. But even if there were, what someone else got away with is not a legal defense.

                    4. Krychek,

                      Just as long as we’re clear that you believe it’s perfectly OK to imprison and execute the black guy for jaywalking, while ignoring the previous 100 white guys.

                    5. I didn’t say it would be perfectly OK. I said it would not be a legal defense. Next time you get pulled over for speeding, tell the police officer that others were speeding too and see what it gets you.

                2. Krychek_2 — Wasn’t there something known as _Furman v. Georgia_ and a *reason* why Charles Manson couldn’t be sentenced to death? (Nor could anyone else during those particular years.)

                  And wasn’t the basis of the Furman decision precisely the point you raise above — that popular (White) defendants were able to avoid execution while unpopular (Black) ones weren’t?

                  Well, what’s the difference between that and Armchair’s point?

                  1. Manson was sentenced to death, and his reprieve had nothing to do with Furman, you treasonous, cretinous lickspittle.

          2. “Also it was the Rs that refused to have witnesses during the first impeachment.”

            The record shows that Trump wanted witnesses, it was McConnell who wouldn’t permit them. They’re not exactly buddies.

            1. Trump was gonna testify too…

            2. Again: Trump didn’t want witnesses. He wanted a tv spectacle. Trump wanted people who were not witnesses to anything Trump was accused of doing.

              1. The prosecution demands the right to pick the defenses witnesses, and dictate the defenses arguments. Typical, could you hope to win otherwise?

                This is the heart of the left’s approach to every conflict: Win by finding a way to dictate what the other side is allowed to say.

                1. Impeachment isn’t a criminal trial, but even if it were, I’m sorry that your Dunning Kruger is kicking in and you’re once again talking about the legal system without any knowledge.

                  If you are being prosecuted for shooting your neighbor, you can bring in witnesses to testify that you have an alibi, or that someone else did it, or that it was self-defense, or that you had diminished mental capacity at the time, because all of those are cognizable defenses. You are not permitted to bring in witnesses to talk about the prosecutor’s political beliefs or the fact that your neighbor once embezzled money from his employer, because those have nothing to do with the case. The court does in fact get to screen defense witnesses and defense arguments for relevance.

                  1. You’re still doing it: Alternating between the legal and political, having it both ways.

                    The prosecution can shit on any legal rule it want, because impeachment is political. The charges can be nonsensical, meeting the legal standard for no crime, because it’s nothing but politics.

                    But the defense? They have to observe every rule, right?

                    1. Brett, you were trying to argue that Trump was being railroaded by being prevented from putting on particular non-witnesses and non-arguments. I was simply explaining to you that this is routine, rather than some special rule for Trump. Even in criminal cases where the due process protections for defendants are at their zenith, defendants never get to say whatever they want no matter how irrelevant to the proceeding. So it’s hard to see why that would be different for impeachment.

                      And, no, nobody has said that Congress can “shit on” legal rules, whatever that means. If a rule by its own terms isn’t applicable, then, well, it isn’t applicable. But, yes, of course the president has to obey the rules of the court — in this case, the senate.

                      As for “political,” when Hamilton used that term in Federalist 65, he did not mean at all what you mean when you say “it’s nothing but politics.”

                    2. But it’s not a criminal case, and the arguments against Trump are only pseudo-legal, so why should he be prohibited from using a political defense, in a political trial, when the charges and arguments against him are just political?

                  2. Since you brought up OJ. How about allegations of a witch hunt?

                    1. I didn’t bring up OJ.

                      “Witch hunt” per se is not a defense. Certainly a defendant can raise arguments relating to the bias of witnesses. (Which is why OJ was allowed to show that Furhman had used the n-word.¹) But again: of witnesses.


                      ¹Like Prof. Volokh, I don’t think that references to the word, as opposed to using it as a slur, should be verboten. But it’s an ugly word and I don’t want to use it unnecessarily.

      3. “Weather the articles are in one or separate does not matter, Trump will be convicted or not depending on Republican politics.”

        likewise the first impeachment was based on democrat politics

        Nary a mention of bidens corruption associated with Ukraine. According the democratic politics, requests for an investigation of the corruption of a democrat is a crime.

        1. There is literally no ‘corrupt association’ with Ukraine.

          1. Sarcastr0
            February.3.2021 at 10:02 am
            There is literally no ‘corrupt association’ with Ukraine.

            Yea right –

        2. If there still is any intelliigent life in the Democratic Party, it might realize the rule of precedent is a big thing in the Senate and that their own people (notably Harris) said more than Trump ever did.

    2. What if the House’s impeachment article simply said “the defendant did bad things, and the Senators will fill in the details”?

      I *hope* (though I can’t be sure) the Senate wouldn’t accept this.

      Division of labor. The House decides what charge(s) the defendant will face. The Senate decides if the charge(s) is/are true. Sound fair?

      1. Almost. The Senate decides if the charges are worthy of impeachment, not if they are true.

        1. ” The Senate decides if the charges are worthy of impeachment, not if they are true.”

          Close. The House decides if the charges are worthy of impeachment. The Senate decides if they are worthy of conviction and punishment.

          1. Fair enough.

        2. “The Senate decides if the charges are worthy of impeachment, not if they are true.”

          To be picky, the charge usually says something about the alleged conduct being impeachment-worthy, so that’s a proposition which is either true or false.

    3. WHICH “House”?

      The 116th one, which no longer exists, or the current one?

      That’s the biggest problem with this charade.

        1. Not only was he impeached by the 117th, this was already pointed out to Dr. Ed 2 when he made the same argument on a previous thread.

      1. OMFG, Dr. Ed. You have been called on this lie like 4 times. The 117th House impeached Trump.

    4. The House chose to make it a single article in order to make the vote (slightly) more painful for Republicans. They have go on record as accepting the whole narrative or denying all of it.

      We should be glad they didn’t mix in Russiagate too.

      1. If he committed clear crimes as the Article and the House brief expounds, then he belongs in an orange suit. Let the DoJ prosecute in a real Art. III Court.

        1. Hmmm…

          I’m thinking of the FBI guy who shot Vicki Weaver and how he was immune from prosecution, even though the state wanted to try.

          Does an Art 3 court have jurisdiction over what a President (any President) does under Art 2? Not what might have been the intent of the framers but the concepts of immunity as they exist 232 years later.

          Remember that the framers would have been adamant that their respective states had an absolute right to try (and punish) anyone who shot someone in their state, regardless of whom he worked for — with the only exception being under military law and what is now the UCMJ.

          1. Like I said, it’s Dr. Ed’s Law of “Remember That,” which is like Trump’s Law of “Sir.”

  2. Another jew bag of parasitic wind babbling about a jewish game played out upon the goy in their own congress. We get it already, the jews have control, they own Pelosi, Biden and any other low life subject to jewish influence (money). The impeachment will pass into history as another trick of the jews which served no purpose for the people of America…the goy. In the meantime, more troops going to the middle east just as the jews commanded Biden to send.

    Jews are begging for it, again.

    1. Can’t Putin train you to be a bit more original?

    2. You sound cocky now, but you won’t be so sure of yourself once we hit you with our giant space lasers.

      1. Don’t forget the Rothschild Weather Machine.

        https://forward.com/fast-forward/396810/watch-dc-councilman-says-rothschild-family-controls-the-weather/

        (By the way, “Rothschild Weather Machine” sounds like a good name for a rock band.)

        1. Rothschild Weather Machine to me sounds like something you’d buy for $299 from the Hammacher Schlemmer catalog.

          1. I’d wait for it to be remaindered at that price.

          2. Can I interest you in a Left-Handed Smoke Shifter?

      2. “You sound cocky now, but you won’t be so sure of yourself once we hit you with our giant space lasers”

        Thank you for that one. It needed to be said.

    3. The Jews? I always assumed it was the Estonians. Why the Jews?

      1. That’s how we know God chose us.

    4. I hate to tell you, “Pavel”, that actual antisemites aren’t fluent in Yiddish and will think that “goy” means “Hispanic”, as in “Goya Foods” — which is actually a brand name, but so is “Coke.”

      Only a Jew uses the word “goy” — the “goyem” refer to themselves as “Christians” or by their ethnic origins (e.g. “Italians”).

      This is an ethnical-linguistic fingerprint.

  3. “guilty of inciting the insurrection”
    Nope. Not even close.

    In other news, a troll on twitter posted the following

    “If you see anybody from the Cuomo Administration in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd. And you push back on them. And you tell them they’re not welcome anymore, anywhere.”

    This of course sparked immense controversy from New York politicians. For example “”The terrifying events of the last month have shown us more clearly than ever that words have consequences,” New York City Council Speaker Corey Johnson said on Twitter, referencing the attack on the U.S. Capitol earlier this month. “This sort of targeting and incitement is simply wrong, and totally unacceptable.””

    Of course, they missed the fact that that tweet was a near word for word copy of what Congresswoman Maxine Walters posted. Replacing just one word.

    The “outrage” here is surprisingly selective.

    https://www.foxnews.com/politics/democrats-outraged-by-troll-who-uses-maxine-waters-quote-they-didnt-recognize

    1. “Of course, they missed the fact that that tweet was a near word for word copy of what Congresswoman Maxine Walters posted. Replacing just one word.”

      Turns out to make a difference if you try to incite a crowd known for their interest in deadly weapons. All that muttering about “second amendment solutions” is working against y’all. Who knew THAT could happen?

      1. “Turns out to make a difference if you try to incite a crowd known for their interest in deadly weapons”

        What “deadly weapons” were used in the January 6th protest? By the protestors….

        1. A fire extinguisher was used as a deadly weapon.

          1. Blm uses guns, ice bottles, lasers, pepper spray, fireworka, hammers, knives….

            Is there a myth there were no weapons at blm riota?

            1. Just once, can you make a comment about the Trump cult riot without using the word “BLM”?

          2. Investigators struggle to build murder case in death of US Capitol Police officer Brian Sicknick

            “According to one law enforcement official, medical examiners did not find signs that the officer sustained any blunt force trauma, so investigators believe that early reports that he was fatally struck by a fire extinguisher are not true.”

            1. Ha — came back here to post exactly the same thing. That one only took about 4 weeks to walk back.

              1. That’s how it works. First you get the lie out, and bury anything that might contradict it. Then in a month or so when the lie is well established, you quietly walk it back. In another month it may be quietly reported that he’d had a known aneurysm, and had just had a stroke, but years from now everybody will “know” that he was beaten to death with a fire extinguisher.

                Just like they’ll “know” that Trump called white supremacists ‘fine people’. Takes a lot of hard work to manufacture and maintain these false reality bubbles.

        2. Don’t forget some guy carried a flag around. That according to our resident expert on the situation, Sarcastro, was an act of violence worthy of the death penalty.

      2. Deadly weapons… again like the police shootings a few years back or scalise?

        Do you guys realize how dumb and partisan you sound?

      3. You’re extraordinarily bad at this debate thing

      4. Turns out to make a difference if you try to incite a crowd known for their interest in deadly weapons. All that muttering about “second amendment solutions” is working against y’all. Who knew THAT could happen?

        So while they might have second amendment rights, exercising them, or even mentioning them, ensures unequal treatment?

        And this is OK?

    2. In other news, a troll on twitter posted the following

      I suppose this whinge concisely conveys where your interests actually lie. Impeachment proceedings? Nah. Let’s smirk over something some troll on Twitter said.

      Anyway, if Maxine Waters had uttered her statement after a series of attempts by leftists to engage in politically-motivated violence, kidnappings, and assassinations, then maybe I would agree that her pouring fuel on that fire would be inappropriate. However, that was not the context in which she was speaking. She was speaking of an entitled Washington elite – the Trump circle and hangers-on – who seemed to think they could disregard the rule of law, engage in rampant corruption, and then go about their lives as ordinary (rich) citizens without a care in the world. The Trumps deserve to be drummed out of decent society, not after the national trauma they’ve put us through.

      1. “the context in which she was speaking”

        Its always different when my side does something.

        1. Context, nuance, objective reality.

          What are things the GOP cannot fathom?

          1. You keep defending leftist violence even here. Lol.

            1. What leftist violence?

              1. Because left wing hypothetical you must allow right wing literal. Boom.

          2. Hypocrisy, double standards

            What are things libs are clueless about?

      2. No. It was bad when she said it, and she’s lucky that nothing happened as a result. Trump people may have been awful, but a liberal society does not have a mob run people out of town because you dislike their politics.

        1. So… BLM didn’t assault politicians, diners, cops, etc after those statements were made?

          Do leftists live in reality?

          1. If you think I’m a leftist, you’re too stupid to live.

            Also, “BLM” didn’t do anything because BLM is a movement, not a person. Saying that “BLM” did something is like saying that “MAGA” did something.

            1. Walk like a lefty, quack like lefty. Lefty.

              1. I guess this means for you the right now stands for one thing: supporting Trump?

                1. Yes. It has been like this for 5 years.

                2. Literally their party platform contained one bullet point: We Support the Trump agenda.

                  GOP is not a political party. It is a cult of personality in pursuit of power.

                  1. I know; I just like it when they say it without meaning to.

          2. No they don’t. I think you need to take the advice about arguing with a pig. Its not possible. You get annoyed and so does the pig.

        2. “but a liberal society does not have a mob run people out of town because you dislike their politics.”

          And yet, that is exactly what is happening…

          1. Liberal, as it is correctly understood, went away a long time ago

  4. In other news, we have Dictator Biden taking over. He has…

    1. Issued more Executive Orders in his first month than Trump in 4 years.
    2. Militarized DC with thousands of National Guard and razor wire everywhere.
    3. Started political purges of the military, Secret Service, and National Guard

    That’s just for starters…. We won’t mention his friendly “cooperation” with big tech and the suppression of speech that is unfriendly to Biden….

    1. 1) Technically, under two weeks.

      1. But Somin is still excited over impeaching a guy who is out of office, rather than worry about current actions of our dictator in chief.

        1. Well, duh. Even out of office Trump is more of a threat to unrestricted illegal immigration than Biden is in office, and that’s really the only thing he cares about anymore.

    2. Disaffected, defeated, demoralized clingers are among my favorite culture war casualties.

      1. You like living in a Dictatorship, do you? A nice militarized state, where you’re told what to think, and what to believe in?

        1. Maybe he’ll get to be the guy on the public-address system in the re-education camps, bombarding the inmates with insults about their deficiencies as human b eings.

        2. He would like knowing what to think if he actually could think.

          1. Think.

            If this low-grade site were not shackled by a one-link limit, I would point toward Southside Johnny Lyon’s wonderful work with a Carolyn Franklin song, Without Love. Carolyn was Aretha’s sister and one of those dancing waitresses. Aim your Google-compatible device:

            Groovy Movies: Southside Johnny & The Asbury Jukes – Mike Douglas Show 1977

    3. Executive orders are just guidance documents from the President to executive branch agencies. They do not have the ability to change the law.

      1. LOL…

        Remember DACA?

        1. Yes. I also thought that DACA was illegal, then someone pointed me to the relevant parts of federal law that gave the president the authority to do DACA.

          1. Link the positive benefits such as work permits given out.

    4. #2 : You know those guys showed up when Trump was President, right? And Biden sent most of them home?

    5. ” 1. Issued more Executive Orders in his first month than Trump in 4 years.”

      So easy to pick off BS. Easily refuted from the federal register.
      Trump 220 total, 55 in first year, 5 in first 2 weeks.
      So only nugget of truth is that so far Biden has a few more orders out of the gate, but is still more than 200 executive orders behind.

      1. You’ll get used to the notion that people like Armchair Lawyer and other Trumpkins think they can lie and nobody’s ever going to call their bullshit out.

        It’s the natural consequence of living in their “alternate facts” world with no accountability in their echo-chambers.

    6. After the damage that Trump has done to the executive branch, and the extent to which he attempted to burrow his corrupt pals into all branches of government, it’s only appropriate for Biden to immediately begin assessing the damage and weeding out the corruption.

      Do you recall the rapid juggling of top defense officials Trump engaged in after he lost the election? Do you remember how none of that made any sense, from a defense perspective? And how it ultimately resulted in halting transition talks with the incoming administration and likely undermined an effective response to the January 6 attacks on the Capitol? Are you saying that Biden is supposed to give those people more time to settle into their roles?

    7. 1. Issued more Executive Orders in his first month than Trump in 4 years.

      I mean, that’s a lie, but it’s Armchair Lawyer so it must be a day ending in “y.”

  5. Why do all these jews talk about a TRIAL when the decision of the JURY is already known. There are no enough jew controlled democrats in the Senate to vote for impeachment … so the exercise is pointless as a function of government, it is just a jew shitshow designed to undermine the sovereign people’s form of government.

    By the way, gun sales are up again, nothing like the the sound of a hammer cocking on a hand canon to worry the jews that maybe their political tricks are not welcome. 2A protects all.

    1. “2A protects all.”

      It sure does.

      http://jpfo.org/

    2. Nothing is as scary as a twit who can’t spell “cannon” correctly.

    3. Listen here you weak, impotent piece of shit. Still sad that the cute Jewish girl laughed at your little dick? Growing tired of your mom’s basement?

  6. The attainder argument is particulalarly spurious. When the Senate sits to try an inpeachment case, it functions not as a legislative body but as a court of impeachment. More fundamentally, the attainder and the impeachment clauses are both in the oriinal constitution, enacted at the same time. It is a basic canon of construction that if it is possible to read two clauses in the same act as not contradicting each other, the non-contradicting comstruction should be used.

    1. You are absolutely correct. That argument is laughable.

      If it were true, then every grand jury indictment would be a Bill of Attainder. Which means that every federal criminal prosecution from the beginning of the Republic is invalid.

    2. On further reflection (not a change in aafministration!) I think they are making a coherent argument, although I disagree with it. It seems to be this:

      1. The Senate lacks the constitutional power to try or convict an ex-President, so it lacks the power to try Mr. Trump.

      2. If the Senate tries and convicts someone it lacks the constitutional power to try and convict, its actions constitute a bill of attainder.

      I disagree that the Senate lacks the power to try and convict former President Trump. Even if the House lacks the power to impeach ex-officials, he was impeached while still in office, and the Senate has the power to try ALL impeachments. Moreover, the legislative impeachment power in the English parliament and colonial legislatures applied to ex-officials. The framers expressly limited this power, by limiting the punishments that could be applied and requiring a super-majority to convict. But they did not otherwise alter it.

      Although I think the argument is wrong, it is at least coherent.

  7. Trump’s brief is illiterate, likely consequence to inability to secure adequate lawyers willing to provide the desired assistance.

    I am beginning to wonder whether Trump might speak at length on his own behalf on the Senate floor . . . with or without his lawyers’ approval.

    1. Never happen. No lawyer would ever let a client like Trump speak while under oath.

      1. I don’t know much about Schoen, but Castor . . . might not have the best judgment.

        Trump could fire one or both just before taking the stage for his grand elocution.

      2. ” No lawyer would ever let a client like Trump speak while under oath.”

        Agreed that it would be a Very Bad Idea. But also not the counsel’s choice.

  8. There was no so-called “insurrection”. It was just a carnival like, college style sit-in, act of civil disobedience that lasted a few hours.

    1. While you were stoned, some shit went down.

    2. College style sit-ins and other acts of civil disobedience does not involve beating a cop to death and trying to kidnap or kill the VP and members of congress in an attempt to install an unelected President.
      The mob at the capital was actively trying to stop the certification of Bidens win.

      1. No one tried to kill anyone. The main person who died was an unarmed protester who was shot for what seems to be no good reason.

        1. Glad to see the status quo of you being a lying shitstain still exists.

        2. “main person who died”

          Wow, so much for Blue Lives Matter.

          1. The media finally found a police officer to support after all this time…

            1. Don’t tell me they’ve finally stopped airing Law & Order?

            2. Not even trying to pretend that you actually give a shit about cops yourself, I see.

        3. “No one tried to kill anyone.”

          So, it just happened? Without anyone doing anything?

          1. 140 capitol police injured in freak accident.

            1. Kicking these gullible, deluded, downscale clingers around is getting almost too easy, especially after a couple of Conspirators have lathered them up.

              (the lathering commences about three minutes in)

            2. I hear that the Jewish orbiting laser guns had something to do with it.

      2. How about all the BLM riots? Were they just lovely little sit-ins? Were they not egged on by any politicians you support? How about the shooting of Steve Scalise? I suggest that you think hard on the larger principles that you’re supporting with this impeachment. I have a feeling you really won’t enjoy it when the same standards are applied to your favored politicians.

        1. If you want to apply the same standard, equally across the board, by all means lets start lining the politicians up…

        2. You know how we know this is disingenuous? People like you aren’t characterizing BLM protests as criminal riots, or the Scalise shooting as motivated by incendiary political rhetoric, because you agree that there’s an across-the-board problem with partisan, divisive rhetoric, or politicians who lie and mislead their constituents in order to drive them to the polls. You point to the protests and Scalise only to deflect from the fact that Republicans now have a massive misinformation problem, are now electing conspiracy theorists to Congress, and can’t seem to envision a political future without Trump cult-worship. And you don’t want to do a damn thing about it.

      3. The cop died of a stroke 2 days later and the doctors nor family say it was related dumbfuck.

        1. The cop died… 2 days later

          Nope. Another lie.

          1. Actually, no. He was taken off life support on Friday, which was two days after Wednesday. He was kept on it so that his family could arrive before he died.

            I’ve heard “stroke” too — and ask to cause of it. Head trauma will do it, but so will high blood pressure. And that’s why we have things known as “trials” where stuff known as “evidence” is presented.

            1. Actually, no, you dishonest halfwit. He was taken off life support and died on Thursday, not Friday.

    3. ‘If you call a dog’s tail a leg, how many legs does it have? ‘ and then answered his own query: ‘Four, because calling a tail a leg doesn’t make it one,'” — Abraham Lincoln.

      What is was was an attempt to use physical intimidation to block one step in the democratic process of electing the president. It blew up spectacularly in the Trump’s face. Now he must face the consequences. Making up word excuses for what happened just does not cut it.

      1. You’ve screwed up a basic quote. it’s “how many legs does a dog have, if you call the tail a leg?”

  9. Nothing is as scary as a twit who can’t spell “cannon” correctly.

    1. D’oh. I’ll cut an paste this back in as a response to the comment it was aimed at.

  10. “At this point, there seems little likelihood of a conviction”

    There was never any significant likelihood of a conviction. The US Senate has NEVER convicted on a Presidential Impeachment.

    1. “There was never any significant likelihood of a conviction.”

      Not much chance of conviction in the Senate. But in an ordinary courtroom… Now that he isn’t shielded by the immunity that comes from occupying the office of the President, the Senate isn’t the only possible setting for a trial.

      1. On what charges? The evidence in the House brief would not be sufficient for a criminal conviction on incitement.

  11. “Trump’s January 6 speech to the crowd that later attacked the Capitol,”

    The Jan. 6th speech is referenced to provide the element of imminence incitement requires. But we know that the attack was pre-planned, by perhaps weeks, and so that speech could not possibly have had anything to do with it.

    So the House case is, to at least that extent, inconsistent with the known facts.

    More later, I have a rocket to watch.

    1. Imminence (the Brandenberg standard) is not required for impeachment.

      1. The standard is “shit we make up because it’s Trump and we need to get him…”

      2. It’s true that a political trial does not require any real crime.

        But getting anyone who doesn’t share your politics to give a damn does.

        That’s why impeachment advocates keep alternating between accusing Trump of ‘incitement’, ‘sedition’, ‘insurrection’, even ‘treason’, things that ARE crimes, and then rushing to say that impeachment doesn’t require a crime.

        You want the gravity and shared outrage a crime brings, but you want the vanishing standard of proof politics gets by on.

        You want it both ways.

        1. The “crime” is being Donald Trump. That is all that is happening here.

          1. Didn’t used to be a crime. It’s almost like someone came along, and dirtied up the name.

        2. I don’t want it both ways. Trump tried to steal an election with lies that provoked an attempted insurrection. Whether or not that is a crime, it is impeachable to any one who cares about democracy and our country.

          1. So you list crimes while saying it doesn’t require crimes…. lol.

            1. I didn’t list crimes.

          2. Josh. Let’s say Trump did try an insurrection. Which do you think Trump would use
            A: A literal army that he has at his command
            B: Elite commandos and spies that he also has at his command
            C: Armed groups with propensity for violence given tactics, weapons, and assignments to effectively take out his opposition.
            D: Unarmed protestors with no tactics, no assignments, and no effect to break into the capitol building and mill about doing nothing of consequence.

            If you answered D, please ask yourself, “Is Trump a blooming idiot?” To call this an insurrection is akin to calling shoplifting gum grand theft. Look at the actions of the protestors who did break in, taking selfies and standing about. They actively thought they had committed no crime at all.

            Using this term demeans the concept and severity of what insurrection actually means.

            1. Trump didn’t attempt an insurrection. He attempted to steal an election. His lies, designed to that end, resulted in an attempted insurrection (enough of the mob, leaving aside the selfie takers, wanted to hang Pence and kidnap Pelosi).

      3. No, but retroactivity does seem to defeat the charge, as written. You cannot incite something that happened last week. Otherwise you can impeach Trump for Pearl Harbor.

        The House, in its rush, wrote up the article of impeachment poorly. The House lawyers are trying to fix it in their brief. (Andrew McCarthy has written about this.)

        In federal criminal practice, that is called a variance. The prosecution cannot prove a different crime from what the grand jury charged in its indictment. That can be a basis to throw out a conviction. It would seem such should apply in the Senate trial, but given that it is all treated as politics, who knows.

        1. ” That can be a basis to throw out a conviction.”

          At least, if there was any appeals court with jurisdiction to hear an appeal of a conviction, which there is not.

          1. Which is what I said.

            Point is, what happens if a Senator with a conscience (10 minute laugh break), concludes, yeah, Trump is guilty as sin, but not of the charge in the House’s impeachment? I would say the person should vote against disqualification (or removal).

            1. I don’t understand what your retroactivity comment even refers to — what “happened last week” in your view? — and it would not seem that such should apply in impeachment trials.

              Trying to map criminal due process requirements to impeachment is a risky endeavor, because the considerations are entirely different. No particular process is due in a senate trial at all. An impeachee is not even entitled to put on a defense — though it’s probably a good idea to allow it. (An impeachee certainly is not entitled to an impartial jury; that would make no sense in this context.) It’s not even clear that the House is required constitutionally speaking to identify specific charges. (Though it’s a good idea.)

              McCarthy misinterprets the impeachment article, reading it narrowly as if it were a grand jury indictment, so his analysis isn’t great. The article is broadly written to encompass a course of conduct, and includes the accusation that Trump violated his duty to take care that the laws be faithfully executed. Which would certainly include failing to protect the Capitol after the riot began. That dereliction of duty also speaks to Trump’s state of mind before the fact; if he actually had no intent to provoke insurrection, then he’d have tried to stop it once he learned about it, rather than cheering it on.

              1. It’s not even clear that the House is required constitutionally speaking to identify specific charges.

                That is simply nuts. The Constitution provides:

                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.

                Why bother identifying the bases for removal, when all the House has to do is say, “we hereby impeach President Bozo, he should be removed and disqualified from office?” And then the Senate approve that by 2/3 vote?

                Federalist No. 65 indicates that “impeachment” as used in the parliament in Great Britain was the model for the U.S. Constitution. And that always included specific articles of impeachment, not just “remove X. ”

                Not to mention that use of the terms “try” and “convict” for what the Senate does clearly implies that there is some kind of review of specific charges against evidence. And that has been the practice in every impeachment trial since the founding.

                Whether the proofs in the Senate in this case meet the charges remains to be seen. But if the focus is on Trump’s January 6 speech as inciting insurrection, then the charge is undercut by evidence that some of the miscreants were already planning this a week or more before that date.

                1. For all your straining, charges are not in the text.

                  Maybe you’re right, but you’re not clearly right, even if you’re really confident in yourself.

                  1. Exactly. I am certainly not saying that charges aren’t a good idea. And there’s historical support for them, of course. But it’s not clear that the House couldn’t just say, “The president, having committed high crimes and misdemeanors, is hereby impeached.”

                    Could the president argue that this wasn’t a legitimate impeachment? (Of course; he can argue anything.) Could he successfully argue that? I doubt a court would touch it. What would the senate then do with that? Who knows? (I mean, we know what this senate would do with that. But I mean any given senate.)

                    1. Didn’t they near do that with Johnson? Impeach him with the articles specified a week later?

                    2. Again, you are confusing what a court would do (not touch it) and what the Senators and Congressmen’s Constitutional duty is.

                  2. The drafters used words that had an accepted meaning at the time, based on the legal traditions of Great Britain. “Impeach,” “Try” and “Convict” don’t mean do whatever you want.

                    I know I have said this many times, but if the Senate voted to “try” someone with a toin-coss, that would be a gross violation of the Constititution, even if there are not words there that say, “Don’t use a toin coss.”

                    1. There are other terms in the Constitution that likewise have meanings based upon the legal traditions of Great Britain. Habeas corpus, ex post facto, bill of attainder all come to mind.

        2. Trump’s lies for two months, including on Jan 6 before the attempted insurrection, suffice to establish the charge.

          1. Lol. I like your assertions sans evidence. We know there was fraud, votes changed and people were indicted. We still don’t know by how much. But you are calling any disagreement a lie. Youre a fucking dumbass.

            1. Excuse me, but would this be an inconvenient time for you to share your proof–you know, like evidence–that there was fraud and changed votes? It’s a little late, granted, but it might be gratifying for you to enlighten us.

            2. We know there was no fraud, no votes changed, and who the hell are you claiming were indicted? Is this just more Sidney Powell/MyPillow delusion?

      4. There’s lots of shit banana republics do that you seem to admire.

    2. Oh my god, really? This is the spin you’re going with, now?

      I don’t think it would be hard to find statements, from you, a few weeks ago, downplaying the significance of the attacks on the Capitol. Not a violent insurrection, I’m sure you would have said at the time. Just an out-of-control protest with inadequate security! Now you are pivoting to saying, sure, it was a planned insurrection, but not one that Trump had any part in. The only thing consistent in the accounts would be the unfaltering defense of Trump.

      1. “The only thing consistent in the accounts would be the unfaltering defense of Trump.”

        This is true across all Trump cultists with any issue.

        1. Lol, says the guy defending biden the last w weeks.

          1. Link to a single comment of mine “defending Biden”.

      2. Defending the indefensible is a tough job. You can hardly expect to get consistency into the bargain.

      3. There are those who are anti-Trump who have pointed out this problem. The proofs have to match the charge. Regardless of what some poster on this website says.

  12. So, I’ve been looking up some more. And one striking parallel is the 2018 Kavinaugh Protests.

    Here the protestors invaded the Senate steps and the Hart Senate Office building.

    Is the only real difference between this protest and the 2021 protest, the relative lack of police presence in 2021?

    Something to consider….

    1. This is very dumb.

      Going to open hearings and protesting until you get thrown out is not what happened on the 6th.

      1. You are right. The activists left voluntarily without having to get thrown out.

        1. Except for the one carried out in a body bag.

      2. Right; Armchair Lawyer (and his MAGA-approved talking points) is comparing the lunch counter sit ins to the Manson family murders just because both involved trespassing on private property.

        1. To be clear, I think the Kavanaugh protests were dumb and not morally justified. But they were not violent attacks.

          1. They would have become that without the police presence.

    2. Even if you’re dishonest enough to pretend to think there’s any sort of equivalence, you surely can’t be dumb enough to think anyone will find this point persuasive.

      1. Uneducated democrats won’t find much persuasive.

  13. I’m glad to see the House document put some context around Trump’s behavior.

    I have seen the “defense” (here and elsewhere) that Trump did not explicitly demand “bring me Pelosi’s head!” and so therefore he is totally not responsible for anything and was only exercising his free speech rights. Although that is stupid it does seem to have traction with too many people.

    Trump is responsible for not only what he did that day, but all the days prior.

    1. Trump is as responsible for the January 6th riot as dozens of Democrats are for the far more violent and destructive riots of last summer. Less responsible, even, because some of them didn’t stop at rhetoric, and actually provided criminals with material aid and support, as well as directing police to let them rampage unopposed.

      Get back to me when those Democrats start to see some consequences. Until that happens, I see no point in humoring this double standard.

      1. Please quote for me the D president who told BLM protestors to:
        “Fight…fight harder than you have before”
        “They are stealing from you.”
        “If you don’t fight like hell, you’re not going to have a country anymore”

        And also please provide some quotes from arrested BLM rioters showing that they thought this D president directed them to riot, as we have now have many statements from capitol rioters that say they were carrying out the president’s wishes when they violently stormed the capitol, attempted to prevent the constitutional duties required to certify Biden’s win, and killed a police officer.

        When, and only when you can satisfy these very simple requirements, can you make an apt comparison.

        1. Cute how you limited that to a D president so you could ignore the dozens of D senators and reps. God youre a joke.

          1. Okay, I’ll play: Please quote for us any Democrat official who told BLM protestors to: “Fight…fight harder than you have before,”
            “They are stealing from you,” or “If you don’t fight like hell, you’re not going to have a country anymore”

          2. Jesse, your dumb shit isn’t going to fly over here. You will see the difference between the education and critical thinking on this side of the reason/volokh divide.

      2. The BLM protesters were not challengng a core tenet of our democracy. The capitol mob was trying, with Trump´s encouragement, to interfere with the peaceful transition of power following an election.

        1. Yeah, right. Unelected ‘autonomous zones’ are no challenge to democracy. Violent mobs demanding that they get their way or the violence will continue are no challenge to democracy.

          You’re going with that?

          1. Dishonest and stupid.

            Seattle deciding to pull back police from a few blocks is not an attack on the foundation of our republic. And you know that. You are grasping for straws to defend the indefensible. You lot need to decide if you actually endorse the constitution, or just like to wave it around when it suits your purpose, like you all do with the bible already.

    2. “Trump is responsible […]”

      These words do not belong in this order in any sentence.

  14. One issue that the House brief did not touch on. It is fairly evident that the Trump administration interfered with the Capitol’s security, leaving it drastically undermanned.

    The memo from the acting Secretary of Defense is highly revealing in that there was clearly no reason for it to exist other than he was ordered to do it. It was basically a stand-down order. The scant police force was on its own, and it was clearly planned that way. Miller did not do that on his own.

    The other interesting bit was Guiliani’s misplaced call to a Senator, where he is pleading for some way to delay the EC vote certification.

    It is pretty clear that what Trump wanted was chaos. Enough of it that the EC vote certification didn’t happen. He would then declare that the congress could not function, and since there was no other president to take charge he would be it to “restore order.” Then he would declare a new election to erase the fraud.

    It is also pretty clear that such a plan is stupid and have no chance of working, but Trump could very well have believed it. Flynn and Powell certainly would have gone for it, going by the Axios report that came out today. And his brain-dead supporters would have cheered wildly.

    It was a coup attempt. It was planned. And Trump did not care a whit what got broken in the process, as long as he was on top of the heap at the end of it.

    1. There was simply no coup attempt. If you want to see a coup go look at what happened in Burma. That is a coup. A few costumed characters taking selfies in a building is a carnival not a coup.

      1. “Nah uh,” says the brain-dead cultist.

        Can you cover up those hollow eyes with sunglasses? You are creeping everyone out.

    2. “It is fairly evident that the Trump administration interfered with the Capitol’s security, leaving it drastically undermanned.”

      Could you flesh out the details of that out some? The wiki article on the Capitol Police says “It [the Capitol Police] answers to the Capitol Police Board whose three members are appointed by two of the three branches of government (House, Senate and President), …”.

      This NPR article says:

      “U.S. Capitol Police Chief Steven Sund asks permission from House and Senate security officials to request that the D.C. National Guard be placed on standby in case the protest gets out of control. The Washington Post reports: “House Sergeant at Arms Paul Irving said he wasn’t comfortable with the ‘optics’ of formally declaring an emergency ahead of the demonstration, Sund said.”

      Mr. Irving was hired in 2012, at a time when the Democrats controlled the house, and of course the Democrats controlled the House during his entire tenure.

      This is basically all I know about how the Capitol Police are managed; if you could give a little more detail about how Trump affected the security decisions Mr. Irving made it would be helpful.

        1. Thanks. That looks bad. I followed the links at the bottom of your article, and found:

          “But Army Secretary Ryan McCarthy and other top officials noted that in the days leading up to Wednesday, federal and D.C. law enforcement officials requested only 340 unarmed DoD personnel to do specific missions, primarily traffic and crowd control.”

          link

          and…

          1. … this:

            “City officials here said it was the Pentagon that planned to keep the presence of National Guard troops at Wednesday’s pro-Trump rally small, unarmed and distant from the Capitol. But Pentagon officials said they were merely responding to the city’s wishes to “keep things de-escalated.”

            A timeline released by the Pentagon late Friday says Capitol Police twice declined help from the Defense Department in the days prior to Jan. 6.”

            (That link is a long account of the Pentagon and D.C. city government pointing fingers about who asked for what when)

            So it seems a little cloudy who was at fault, or if both just underestimated things.

          2. Yeah, everyone is pointing fingers. I myself don’t think the Admin slow-rolled the prep – it was a shockingly inept failure to heed the FBI and instead go with a low-visibility setup that was super dumb. With little failures all the way up and down the line

            The response, though, was definitely delayed by Trump’s reluctance. Some reports say the DoD settled for Pence with Trump just not speaking against it…which is pretty troubling on a number of levels, and not just re: Trump.

            1. Delayed? Lol. God damn, he fucking showed how stupid your assertion was and this is what you go with? Delayed? Tell me how those delays in Seattle and Portland are going.

            2. Yeah, people who are not at all Trump fans have said that the Miller memo isn’t really unusual at all, and doesn’t look nefarious. The issue with security with Trump really has to turn on the time period after the coup attempt began when members of Congress were frantically calling for help and he still wouldn’t authorize the National Guard to assist.

      1. Sund disobeyed Irving’s orders and went behind Irving’s back to his buddies in DC Metro PD (where he’d retired from) and got them to be ready to help him if needed.

      2. Sund disobeyed Irving’s orders and went behind Irving’s back to his buddies in DC Metro PD (where he’d retired from) and got them to be ready to help him if needed.

        DC Mayor limited Guard after Lafayette Park.

    3. Capitol security is controlled by congress shit for brains.

      1. National guard is not.

        You alright, Jesse? Seem wound a bit tight tonight, all over this thread.

        1. Jesse can’t answer right now. He is frantically gather together all his evidence to finally prove to us that the election was stolen. We’re waiting, Jesse. Any day now.

  15. A complete waste of time.

    This post and the pre-scripted farce in DC.

    1. Outside of DC we call it a sham.

  16. It’s hard to take Ilya’s position seriously when he makes no efforts to present an impartial analysis.

  17. Dammit. You linked to something that was going to demonstrate Trump’s calls for violence. Seems odd that he’s calling for violence and his political opponents were committing the majority of it, but I digress.

    I clicked on the link with an open mind hoping to learn about Trump’s bullshit. And what is there? A fucking Vox article. What, o internal memos from the Democratic Party were available, so you relied on the closest thing to it?

    I’m comfortable that Trump is a narcissistic selfish prick. But you can’t prove it with a Vox article. Or with anything from a lot of the remaining media. There’s a cost to those people throwing away their credibility, and we’re now living with it.

    1. ” There’s a cost to those people throwing away their credibility, and we’re now living with it.”

      If only they had the kind of credibility that you maintain.

  18. The defense filing is clearly an answer, not a brief.

    An answer admits or denies allegations and briefly states affirmative legal defenses. This is exactly what the defense filing does.

    A brief makes legal arguments and cites authorities. The defense filing doesn’t do that.

    Perhaps the new lawyers didn’t have time to research a brief and thought an answer was the best they could do.

    1. Good catch

      “Under the Schumer-McConnell agreement, Trump’s counsel will respond to the article of impeachment (basically a plea, certain to be “not guilty”) and the House managers will file their pre-trial brief on February 2. Team Trump will file its pre-trial brief on February 8.”

      The ace law prof compared an answer to a brief for completeness.

    2. “Perhaps the new lawyers didn’t have time to research a brief and thought an answer was the best they could do.”

      Did the previous crew leave nothing but empty noise? The old argument was “I know I won because lots of people came to my rallies” and “we did the best we could to suppress the votes of people we couldn’t count on to vote the way I like.”

  19. I’m not following the bill of attainder argument at all. How could an impeachment ever not be a bill of attainder under their theory?

    1. Take your hand, make a fist, and pound on the nearest table three times. That is the only coherent explanation you will ever get.

    2. It’s a silly argument, because a bill of attainder is a legislative act that declares a person guilty of a crime, and subjects them to a criminal penalty. There is no criminal penalty in an impeachment, and they’re only accusing him of figurative, not literal, crimes. Of course, they don’t mean that it’s legally a bill of attainder, just morally.

      I think Trump is factually innocent, and certainly no more guilty than dozens of Democrats are in regards to the BLM/Antifa riots. But they’re really throwing random stuff against the wall, and superglue wouldn’t help some of these arguments.

      In a fight between the Evil party and the Stupid party, I guess I have to side with the Stupid party. But do they really have to lean into the stupid to this extent?

      1. The Supreme Court has interpreted “bill of attainder” much more broadly than you. For example, in United States v. Brown, 381 U.S. 437 (1965), the Court struck down as a bill of attainder a law that prohibited a member of the Communist party from being an officer or employee of a labor union.

        If Congress passed a law that said individual X could not be employed by the federal government, that would almost certainly be viewed as an attainder. A bill of attainder is essentially a legislative sanction without judicial process. The sanction need not be “criminal”, just punitive.

        1. To the extent that argument works at all, it runs into the fact that the impeachment process and penalties are right there in the Constitution, and so simply cannot be “unconstitutional”. Like I said, not a legal argument.

          1. I’m not making the argument, just restating it. Of course impeachment is constitutional – if it’s a VALID impeachment, which is what everyone is arguing about here.

            If the House purported to impeach an individual who had never been in the federal government, and the Senate went on to “convict” that individual and disqualify him from future office, would you argue that was constitutional because the process is right there in the Constitution? I suspect such an individual could go to the D.C. district court and get a declaratory judgment that the “impeachment” was a nullity. Here, of course, we are arguing a much closer case, as evidenced by the various legal authorities on both sides of it.

            1. If the House purported to impeach an individual who had never been in the federal government, and the Senate went on to “convict” that individual and disqualify him from future office, would you argue that was constitutional because the process is right there in the Constitution?

              Yes. There are no restrictions on impeachment itself (as opposed to on punishment); the House is granted the sole power to do so. And there’s pre-constitutional British precedent. I would think this is a terrible idea because of the mischief it invites, but I would not argue it was unconstitutional.

              1. “There are no restrictions on impeachment itself”

                Unless you actually read the impeachment clauses, of course. “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.”

                The most direct reading is that is an exhaustive list of the people subject to impeachment.

                Having the SOLE power to impeach is not at all the same as having PLENARY power to impeach. It just means nobody else can exercise the power, not that there aren’t any limitations on your exercise of it.

                1. You just ipse dixit the exhaustive part.

                  The Founders knew how to use the word only when they wanted to.

                2. The most direct reading is that is an exhaustive list of the people subject to impeachment.

                  That is not the most direct reading at all. That’s not a grammatical reading, a textual reading, or a historical reading.

                  The most direct reading of that is that it specifies a required punishment for certain categories of impeaches. Because, you know, that’s what it actually says.

                  And it makes little drafting sense to put the power in Article I — sensibly, since Article I is the article that defines the powers of the House and the House is the body that impeaches — but then obliquely put all the rules for using that power somewhere else, in an entirely different Article.

        2. “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” (Article I, Section 3) means removal and disqualification cannot be unconstitutional bills of attainder.

    3. I think their argument is this:

      1. The Senate only has power to try a sitting President, not a former one.

      2. So this trial is ultra vires, outside the Senate’s impeachment trial powers.

      3. An ultra vires impeachment trial constitutes an attainder.

      1. Premise 1 fails, and grossly so. Maybe the House can’t impeach you after you leave office, but the only condition on the Senate trying you is that you be impeached. And Trump was.

      2. Senate has the power to try ALL impeachments.

    4. One is an act of Congress needing only the normal legislative process, the other needs a trial in the Senate needing 2/3 vote. Also impeachment has only two possible consequences.

      1. ” Also impeachment has only two possible consequences.”

        Your count is off.
        One possible consequence is no consequences (because acquittal).
        One possible consequence is guilty-removed from office
        Another one is guilty- removed from office AND disqualified from holding any office in future.

        1. You are still short one as well. If the Senate can try an impeached official after they leave office then you are missing: guilty – not removed from office by impeachment, but disqualified from holding any future office.

    5. “I’m not following the bill of attainder argument at all. How could an impeachment ever not be a bill of attainder under their theory?”

      Under this theory, the impeachment isn’t REALLY an impeachment because it wasn’t delivered to the Senate for trial while Trump was still President, just in case the “trial held after the term of office is complete makes it unconstitutional” argument doesn’t hold water, which it does not.

  20. I don’t think Trump goal is acquittal as that is the likely outcome. I think the goal is to bind the Republicans to him. To say to the Senators, pick me or your country you can’t have both. The thirty pieces of silvered offered is an endorsement in the next election. Time will tell if this bargain is worth the price.

    1. “The thirty pieces of silvered”

      Who’s Jesus in this scenario? Biden?

      1. “Who’s Jesus in this scenario? ”

        There isn’t one. Jesus was a flaming liberal, and would be unwelcome in the modern Republican party.

        1. He was always denouncing Republicans and sinners.

      2. I’m not sure I agree with the metaphor, but Jesus would pretty clearly be who/what they’re betraying – the US Constitution, the rule of law, or our system of government.

        The Devil collecting on a Faustian bargain would seem a better metaphor.

      3. Who’s Jesus in this scenario?

        The country. Or the constitution, if you prefer.

    2. More a matter of, “Pick me or retirement, because the people who put you in office are still on my side.”

      1. Trump’s people represent a minority, but enough to stop a candidate in the primary. There are only a fraction of the people who put a candidate in office and yet they have the power. Until people are willing to stand up to them. That could happen in the next general election.

        1. Trump’s supporters are a minority of the general population, but every poll confirms they’re a majority of the Republican voting base. They’re not the people to be stood up to, they’re the people doing the standing up to.

          That might change over the next few years, with Trump subjected to virtually complete censorship by the media, but I wouldn’t count on it.

  21. If Mr Trump committed violations of the US criminal law as the Article and the House brief expounds, then he belongs in an orange suit. Let the DoJ prosecute in a real Art. III Court. Nothing precludes that.
    And all the back and forth above is just blah-blah.

    1. “then he belongs in an orange suit.”

      Can they order one to match the hair?

      1. I would hope so!

    2. They’re not going to do that because no honest prosecutor, and few dishonest ones capable of being embarrassed, would want to bring that case. Prosecuting figurative crimes doesn’t work out so well in real courts.

      1. Trump could easily be prosecuted for his call to the SoS of GA.

        1. That seems the most promising charge. And it has the advantage of actually being part of his attempt to hijack the election.

          As opposed to some tax fraud charge the NY AG might bring, which would only show that he is a crook, same as lots of others.

        2. “Trump could easily be prosecuted for his call to the SoS of GA.”

          Or his solicitation of vote fraud in NC. Or tax fraud in NY.

          1. Wait. The tax fraud in New York has been proven?

            I mean, we all heard the Georgia phone call. Fine. But the tax stuff was just a story in the newspaper. One that is virulently anti Trump and zealously Democrat. That’s enough for a prosecution and guilty verdict these days? Really?

            Tell me again about who is “destroying our norms”. Lol.

            1. It is enough for the AG to look into it. The grand jury and petit jury still have to be gotten through by the State. That is the due process that Trump, like any other private citizen, gets.

              1. Not to James. He’s ready to go to trial and get Trump behind bars where he belongs.

                1. I don’t see that in his comment. In any case, what James says is irrelevant. We still have due process, even for scum bags. Especially for them.

                  In states east of the Mississippi, like NY and GA, you first need an indictemnt by a grand jury. Not all that hard to get, but they do sometimes balk. (In NY, the defendant can demand to appear before the grand jury.)

                  Then you have a trial, with cross-examination, high burden of proof for the prosecution, and a jury. That’s a lot harder to get.

                  I too want Trump prosecuted. And to get all the due process any other criminal defendant gets. And hopefully some real jail time.

                  1. I never liked the guy and certainly didn’t vote for him. But I’m suffering, not from TDS, but from Trump Exhaustion. I just want him to go away. I don’t really care how, as long as the constitution is honored. That’s more important than Pelosi and Trump.

                  2. Obviously the DoJ Attorney would analyze whether he actually has a fair chance of winning the prosecution. Otherwise, no prosecution would go forward.
                    The Senate trial does NOT preclude prosecution; therefore, the equity of any Senate finding is undercut by the failure of the relevant US Attorney to prosecute.
                    No prosecution proclaims, “It was just a show trail.”

                    1. It will be a state prosecution. That allows Biden and Garland to avoid charges of political payback.

                    2. Which is another reason the Georgia thing makes the most sense. You have a Republican governor, a Republican AG, and a state that almost went for Trump. A lot harder to charge politics than NY, let alone DC.

                    3. The standard for what is a crime is not the same as for what is an impeachable offense.

              2. You mean they think there may be fraud based on ??
                But they won’t know for sure until they investigate further.

                So at this moment they have no evidence of tax fraud. If we’re using the voter fraud standard shouldn’t this case be thrown out, not heard.

      2. I don’t see that at all Brett. An honest prosecutor would look very hard into the charges. Once that fact is know. Prosecution is almost inevitable.

      3. I wonder if Trump will be able to use the millions of dollars he scammed from his cultists to pay all the legal bills he’s facing for years to come.

        1. No need. Trump just stiffs his lawyers. Why any lawyer would be stupid enough to take him on is a mystery. Unless they feel the notoriety is worth working for nothing.

          A few years ago we had a really difficult client. Made him pay each month in advance. No money, we would get out. Put it in writing.

          We were his fifth counsel in the case. (!) It lasted about a year, then he moved on to his sixth counsel.

          1. So you mean you took the job to get paid. Imagine that. Maybe that is why a lawyer would take the case.

            Did you ask who the difficult client voted for before you agreed to take his case? Because of course his politics were wrong that would be a non-starter right?

            How in the world did you pass 8th grade much less the bar exam?

            1. What are you blabbering about? Trump has repeatedly stiffed his lawyers. Anyone who takes him on without getting paid in advance is a fool, unless he thinks the notoriety of representing him makes working for nothing worth it.

              That’s the point — lawywer work to get paid. Trump has a history of stiffing his lawyers, so they are in real danger of NOT getting paid.

              The client’s politics have nothing to do with it. Getting paid is one consideration. Being a pain in the rear is another. Trump is both.

              Pain the rear jerks come in many political persuasions. Trump is just one example.

  22. Impeachment has become the new virtue signaling. Dems spent the last four years telling us how dangerous Trump was for our Republic yet they did everything in their power to undermine every constitutional norm that was established since the founding. Great work libs!

  23. ” Dems spent the last four years telling us how dangerous Trump was for our Republic yet they did everything in their power to undermine every constitutional norm”

    That’s some top-notch victim-blaming, right there.

  24. Trump fans learn their guy is just a flabby, old, lying loser.

    QAnon fans learn their guy(s) lied to them all along.

    GameStoppers learn their dream was just a foolish, doomed pump-and-dump.

    It has been a rough few weeks for gullible, disaffected misfits.

    1. Not sure I know any QAnon fans. Seriously, until a few weeks ago I assumed it was some sort of drug rehab cult, based on the name.

    2. Yeah, haha, Trump’s a washed-up fraud, and everyone knows it.

      To show everybody we really believe this, let’s subject him to a nationally-televised show trial where we insist an unprecedented national emergency requires us to ban this former official guy from running for President ever again. This national pariah that is universally despised.

      That’ll show ’em we’re all about the future and have put Trump in the rearview mirror. That is definitely not a sign of fear.

  25. Random thoughts on the Reply, likely completely wrong, uttered into the void of a comments section:

    A proceeding can’t be void ab initio, although its judgments can.

    The reply perhaps should have been addressed to the court, not to the Senate. It emerges from the Senate fully formed around noon, like a Mogwai fed after midnight.

    The analysis on Bill of Attainder is correct, I think. Contrary to the American legal reflex action and the main post here, the question of punishment under bill of attainder doesn’t look to 14A property interests. See Nixon v. GSA. And Brown held that holding a union office was a sufficient punishment. The point is that there’s no daylight between Bills of Attainder and impeachments — it sets a hard boundary.

    Although I seem to be the only person saying this, again, commenting into the void, there’s no free speech defense, because it’s an entirely constitutional process not involving or directly or indirectly resulting from any legislative act. Congress has made no law abridging the freedom of speech.

    The reply invents, and then strangely doesn’t specifically contest the issue of forseeability, leaving its own accusation to the general denial — might recklessness be sufficient scienter for a high crime?

    Blue sky and off the top of the head, but it might not be completely historically inappropriate for the charging instrument to be pieced apart by the Court. There is historical precedent for it in Senate trials (Humphries, 1862) and the present rule against it can be suspended by an ordinary motion to suspend the rules. (The Senate sits as a Court inside of its usual day, and the legislative day subvenes the trial — the motion to adjourn at the end simply dissolves the court, it turns back into a Mogwai that it always was underneath, and it goes about its business.) In ancient history, the commons/representatives were a house of petition, and the upper chamber could revise its petitions, e.g.:
    Commons: “Wrong! Pain Bad!!!!! What the ##&#^#, dude????!!!”
    Lords: “Dread sovereign, the Commons humbly ask that you stop hitting them on the head with your large stick.”
    King: “Denied.”

    Hoping the Republic doesn’t do too much damage to itself in the coming weeks. Seems to be a time for cooler heads to prevail.

    Good primer: https://crsreports.congress.gov/product/pdf/R/R46185

    Mr. D.

    1. Correction, forseeability was in the Article itself, although only mentioned once in the brief. My error.

      Mr. D.

  26. Ilya Somin asserts: “The defense brief predictably raises both the free speech defense, and the claim that impeaching a former president is unconstitutional. But it fails to address any of the numerous flaws in these arguments pointed out by a variety of legal commentators across the political spectrum—and duly summarized in the House brief.”

    Somin is neither journalist nor legal scholar, but a political hack. The only truth Somin utters is this (addressing the “bill of attainder” aspect of Trump defense counsel’s argument that the Senate lacks jurisdiction to try trump): “I will mostly leave this issue to those with greater relevant expertise.”

    I HAVE relevant expertise. I have been a law professor since 1972. I have written many, well respected published law-texts. I have won constitutional arguments in the U.S. Supreme Court and the lower federal courts. I agree with the pertinent legal observations put in Leonard R. Jaffee, STRUCTURAL CRISIS: SENATE THREATENS TO USURP PRESIDENCY, CONSTITUTION, AND WILL OF THE PEOPLE, https://leonardrjaffee.substack.com/p/structural-crisis-senate-threatens-cd3
    Professor Jaffee’s article proves that clearly the Senate lacks jurisdiction to try Trump.

    What of Somin’s assertion that “[Trump defense counsel’s “brief”] fails to address any of the numerous flaws in these arguments pointed out by a variety of legal commentators across the political spectrum”? A truly competent and honorable legal scholar knows that the “variety of legal scholars” are acting not as lawyers or legal scholars but political hacks like Somin.

    I expect that Somin references a 21 January 2021 “Letter to Congress” that bears a text titled “Constitutional Law Scholars on Impeaching Former Officers,” https://www.politico.com/f/?id=00000177-2646-de27-a5f7-3fe714ac0000

    The above-cited “Letter to Congress” claims that all the numerous signatories are “constitutional law scholars” — though many are NOT such. The “Letter to Congress” argues that U.S. Constitution Article I § 3 clause 7 provides clearly that the Senate has jurisdiction to try an impeachment of an ex-President despite the impeachment did not reach the Senate until after the ex-President’s Office had ended and he vacated it. Quoted immediately below is the “Letter to Congress” argument-part that purports to construe Article I § 3 clause 7:

    [BEGIN QUOTE OF “Letter to Congress”]
    “…[T]he 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-forremoval 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. In order to give full effect to both Article I’s and Article II’s language with respect to impeachment, therefore, the correct conclusion is that former officers remain subject to the impeachment power after leaving office, for purposes of permitting imposition of the punishment of disqualification.

    “If impeachment were only a device for removing officials from office, then perhaps only current officers could be impeached. But disqualification is a consequence that might need to be imposed on prior officeholders as well as current ones. In keeping with that rationale, nothing in the text of the Constitution bars Congress from impeaching, convicting, and disqualifying former officials from holding future office. Indeed, the ability to try, convict, and disqualify former officials is an important deterrent against future misconduct. If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined.”
    [END OF QUOTE OF “Letter to Congress”]

    The “Letter to Congress” does not present an actual construction of Article I § 3 clause 7. The “argument” does not parse the language of Article I § 3 clause 7 or attempt any kind of logico-linguistic analysis of Article I § 3 clause 7’s precise terms. Rather, it is a specious policy-argument that would further the political policy aims of the Democrat Party and “never-Trump” Republicans. Its “construction” is merely an assertion of the conclusion the Democrat and “never-Trump” Republican signatories want the Senate to adopt and The People to believe. [Compare the thorough Article I § 3 clause 7 parsing and logico-linguistic analysis Professor Leonard R. Jaffee’s above-referenced article presents.]

    Then the “Letter to Congress” uses British “history” [WHICH IS IRRELEVANT] and an unsupported, heavily biased misrepresentation of the “history” of the “intention” the Framers pursued in including Article I § 3 clause 7 in the Constitution. That “history” would fit very well in a comic-book version of “The Making of a Nation.”

    Finally, the “Letter to Congress” relies on a misrepresentation of the 1876 Belknap case, which, as Professor Leonard R. Jaffee’s above-referenced article shows, is NOT precedent for the proposition that the Senate holds jurisdiction to try a civil Officer’s impeachment after the Officer’s Office has ended and he has vacated it.

    If a law-student had presented to me for grading the “arguments” the “Letter to Congress” adduces, I would have awarded the student’s presentation an “F” grade. The signatories do not have a legitimate argument. Hence they present fluff they expect to be credited because they believe they are lofty “Constitutional Law Scholars” who deserve obeisance. In drafting and signing their “Letter to Congress,” they acted not a lawyers, but as political hacks.

    Somin asserts that the House impeachment managers’s “brief” is a gloriously compelling, thorough, irresistible tour-d-force of prosecutorial lawyering. Actually, however, it is a fat jumble of frauds that would not survive a defense-counsel’s dismissal motion submitted in a criminal case filed in a legitimate judicial tribunal rather than a kangaroo court like the current Senate corrupted by a Democrat majority and a batch of “never-Trump” Republicans.

  27. Somin is wrong if he believes that there is evidence that the election was not rigged, and that Trump was lying.

    Others are wrong if they believe that there was important evidence that the election was rigged.

    The difference between those two views is a single factor: does the speaker hate Trump or not.

    1. the maker of a claim bears the burden of proof. The claim “Trump was lying” is not an extraordinary claim, it is as consequential as noting that water is wet, or that night is dark. Had anyone allied with Mr. Trump been able to produce evidence supporting his claim to have won the election, it would have come out, probably in one of the 60+ court cases. No. People who desperately wanted to believe that Trump won the election chose to believe this. When they couldn’t get elections officials to join them in stealing the election, Trump turned to the only other thing he could think of, which was to turn a mob loose on the capitol. They didn’t capture the EC ballots, so they didn’t get the chance to alter them to their liking. Which is much better for the country.

  28. So let me get this straight…

    We were supposed to tolerate a summer of rioting, looting, violence, criminals shooting mortars at police, and a full blown autonomous zone with its own declaration of independence. But when some activists who have been censored by the media and Big Tech want to have their voices heard and are forced to take to the streets by the number of about a million we are supposed to believe that is a “coup” or “insurrection” or something similar.

    The media can’t write the words “riot” until Trump protesters hit the street but instead whitewash over looting and violence with the dog whistle “mostly peaceful protests”.

    The liberals have lectured us for the last four years about how Trump has violated all the “norms” of democracy, yet have twice impeached him for bogus charges only after subjecting the administration to various completely fabricated witch hunts. And now we are supposed to care?

    Liberals stoke the race riots all summer long, but Trump is supposedly a bad guy for giving an impassioned speech. Their speech is “free speech” but Trump is “incitement”.

    OK, I think that sounds about right.

    1. Rioters went to jail. And also weren’t an insurrection.
      Also not an insurrection: an autonomous zone being allowed to poop itself out.

      Additionally, not caused by anyone. You can point to supportive statements *after* it occurred, but even then it was largely for the protests not the riots.
      Trump, by contrast, was riling up the insurrectionists every step of the way, including on the 6th itself.

      Disagreeing with the reasons for impeachment doesn’t mean norms are violated.

      1. If erecting something called an autonomous zone where you keep out police and government officials while exercising private control over the people who live and work in that area is not some form of insurrection (called conspiracy to deny civil rights), then definitely having a carnival like festival in a building for three hours isn’t it either.

        Calling activists “insurrectionists” doesn’t make it so. To coin a phrase from Princess Bride, “you keep on using that word, I don’t think you know what it means.”

        Up until this time last year we used to have a norm that Presidents were not impeached for pure political activity and the burden of proof to even contemplate such an action was high. Now democrats have made the process a farce and form of political retribution. That violated a norm that was understand since our Founding and brought us one step closer to being a banana republic.

        Want to try again?

        1. The key, Jimmy, is the violence. It seems like the best tactic de-escalation against it was to wait for it to eat itself, which it did.

          No one in the CHAZ was hunting cops. On the other hand, the insurrectionists wanted to kill Congresspeople. They came prepared for it, they acted like it while they were there, and by all accounts were minutes from getting a chance.

          we used to have a norm that Presidents were not impeached for pure political activity
          The insurrection wasn’t that.

          You don’t get your own facts as you caterwaul about norms.

          1. Wow, at this point you’re living in a full blown fantasy world, aren’t you? That’s the only explanation that fits the facts.

            1. If you have evidence to contradict what I said, provide it.

              1. How were the people in Chaz supposed to hunt cops, when their allies in the local government ordered the cops to leave them alone as they preyed on the citizens?

                But do you expect us to forget the police stations attacked? Attempts to set occupied buildings? Law enforcement blinded with lasers?

                They hunted enough cops, and you think the technicality that they didn’t hunt them where the cops were ordered not to go means something?

                1. There is also a long list of cops who were targeted in the early days of BLM by criminals who explicitly said they were seeking revenge for Floyd. So maybe Sarc is right, words do matter, and we should hold accountable all the Dems who incited the summer of riots.

          2. Do you ever step back and take a look at how far down the Orangemanbad hole you’ve fallen?

            “Nah, forget about CHAZ. The few hours at the Capitol was worse”.

            1. Looking at both the actual/intended deaths, and the end-game goal…yeah.

              1. They tried to burn down a police building WITH police in it!

          3. It seems like the best tactic de-escalation against it was to wait for it to eat itself, which it did.

            Several people were murdered, many lost the use of their property, private property was vandalized or destroyed while it ate itself.

            No one is obligated to “de-escalate” when there are crimes being committed. You say that because you sympathized with them. If, like Durken, your life or property were at risk you might think differently about de-escalation.

            1. Lost use of property? Oh my stars and garters.

              The Capitol managed more casualties in a few hours. And their goal was the blocking of the rightfully elected President.

              You’re into bloodbaths against criminals; I am not. And I also am not when they are conservative, if you can manage to understand that.

              1. No one had the “goal” of blocking elections. It was a protest by concerned activists that had been forced to take extreme measures to have their voices heard. Things like this happen when you censor people in a free society. And seeing the left is still butt hurt over it, the event was a huge success.

                1. seeing the left is still butt hurt over it, the event was a huge success.

                  Trump ain’t President no more, Jimmy.

                  1. The point was to get people talking about voter transparency. And that is what they are doing now.

                    1. LOL, no it wasn’t.

                  2. Yeah funny how that worked out right? We were told Trump was going to overstay at the White House. The military was going to have to intervene. There were plans to thwart the transfer of power. There was no way in hell Trump would leave office on Jan 20th. The media gaslighted us with those stories for months even before the election. Then, nothing, just crickets.

                    1. Yeah, that was a risk. Seeing Trump’s actions both in public and privately, denying that there was a risk is ridiculous.

              2. “You’re into bloodbaths against criminals”
                AKA law enforcement. Aren’t you with the group saying that the cop was right to shoot the woman at the Capitol?

                1. There is a very large excluded middle between lawlessness and bloodbaths.

                  No, I have no idea if it was called for. But she’s not some innocent martyr – there was some assumption of the risk when you invade the Capitol and try and get at the people working there. You know, threatening lives, the usual thing where deadly force is on the table, if not always the right choice.

                  You, on the other hand, want to kill people for property crimes. And for having bad politics, it seems.

          4. “No one in the CHAZ was hunting cops.”

            So, why was the precinct building cleared out?

            1. De-escalation. You didn’t have people roaming the streets calling specific cops’ names after posting about killing them. Also no zip ties.

              1. Is the best you got still one dude with zip ties (which are not illegal BTW). Instead you have armed rioters going door to door in CHAZ demanding money, posting guard to make sure 911 services won’t respond to calls, and then at night the place basically turned into the Purge. All of this where thousands of people had to live and try to work for weeks on end. Yeah “de-escalation”….

                1. “zip ties (which are not illegal BTW)”

                  Sure, my toolbox has a drawer full of zip ties, I use the all the time. Rope and duct tape aren’t illegal either, but if you get caught climbing through a lady’s window at 0200 carrying rope and duct tape, the jury is likely to use your possession of those perfectly legal items to assess your likely intent.

                  1. My point is that if it was a real “coup” or “insurrection” there probably would be more than one example of a guy who had tools to execute that kind of operation (and more effective tools at that). And suggesting that ONE guy who had an item that is otherwise legal is the only point of evidence you have to support your assertion, then it is beyond weak.

              2. “You didn’t have people roaming the streets calling specific cops’ names after posting about killing them.”

                Just FWIW: “Democratic State House candidate suggests Minnesota suburb be burned down: ‘I didn’t come here to be peaceful'”

                I googled “demonstration outside minnesota policemans house kroll” to find that … there is lots more coverage, youtube video, and so on.

                1. Yeah, that guy sucks and I hope he wasn’t elected.

                  I don’t see Dems lining up to support what he did though; the symmetry remains absent.

                  1. You think they rioted night after night, set up autonomous zones, set fire to buildings, and pulled off a couple billion in looting, with scarcely anybody being brought to justice, without the support of local politicians? All of whom were Democrats?

                    Antifa is as much a Democratic party goon squad as the Klan ever was, and just as reliant on the support of Democrats in power to protect them from the legal system.

                    1. Antifa is bankrolled by Soros shadow corporations. This is well known.

                    2. I think your ‘they’ contains multitudes.

                      I also think your speculation about local politicians is a pretty weak appeal to incredulity.

                      Plus, of course, Trump is not a local politician.

                      And Antifa never did an insurrection so you again fail.

                    3. It’s not speculation that the Antifa rioters had support from local governments, it’s established fact. Mainly in the form of local police being ordered to not obstruct their crimes, (“Stand down orders and 911 calls from autonomous zones not being responded to.) and local DA’s routinely dismissing any charges against the rioters.

                      This is the same sort of support the KKK relied on getting, back in the day. It’s absolutely essential support if you’re going to be openly committing criminal acts day after day.

                    4. And as has been repeatedly pointed out to you, many of the things Antifa does are classic examples of “insurrection”, such as attacking government facilities, or taking over parts of a city. You’re conspicuously in denial about that.

                    5. Now you’re conflating Antifa with rioters with the CHAZ/CHOP. This is such clear nonsense, you have to be arguing just because you gotta.

                      Stand down orders do not an insurrection make. Look more into what the KKK did, maybe. Quite different from what we had this summer.

                    6. Antifa sucks, but they took over nothing. Vandalizing is not an insurrection. Neither is assault, which seems more Antifa’s bag.

                      Antifa makes you quite overdramatic.

                    7. “And as has been repeatedly pointed out to you, many of the things Antifa does are classic examples of “insurrection”, such as attacking government facilities, or taking over parts of a city. ”

                      I’m sure you have “pointed this out” several times, but it still isn’t true. What Antifa does do is partisan street violence. Which is bad, but isn’t insurrection.
                      So this case of whataboutism fails.
                      If you want to make a whataboutist case against antifa, bring up the time they invaded the Capitol to keep Congress from counting the EC votes that installed Donald Trump among the list of the 46 best Presidents this country has ever had.

                      “but… but… but… guys on your side did bad stuff, too” does not excuse wrongdoing, and even if it did it would only work on people who had a side.

                    8. “Antifa is bankrolled by Soros shadow corporations. This is well known.”

                      This is well-known by people who don’t know anything, you mean.

                  2. “Yeah, that guy sucks and I hope he wasn’t elected.”

                    I regret to inform you that he won the general election, with 72% of the vote.

                    “I don’t see Dems lining up to support what he did though;”

                    Your thesis is that the 72% of the electorate that voted for him were republicans and libertarians? That voting for him doesn’t indicate support for him? Something else?

                    1. My thesis is that local politicians are not national politicians.

                      Separately, bringing the voters in is a distraction. Politicians are supposed to lead, and should be judged independently from their electorate.

                    2. “Separately, bringing the voters in is a distraction.”

                      So ‘Dems’ is a term that doesn’t include people who vote for democrats? It’s so hard to keep up!

                      “Politicians are supposed to lead, and should be judged independently from their electorate.”

                      Ahhhh, so people who voted for Trump are splendid people? His failings aren’t their fault? Got it!

          5. Meriam Webster defines insurrection as: “an act or instance of revolting against civil authority or an established government”

            By that defintion CHAZ definitely meets the requirement, as does the attacks on the federal courthouse in Portland, and the burning of a few police precincts.

            I’m not pointing this out as a means to ‘defend’ against the impeachment. They’ll do what they’re going to do with that. But I am pointing out that if the capitol was insurrection, then so were a few other things going on last year.

          6. Don’t engage with the bad faith CHAZ argument, Sarcastr0. Whether it qualifies as an insurrection is irrelevant, because the issue here isn’t whether the insurrectionists should be prosecuted. It’s whether Trump’s creation of and support for the insurrection renders him unfit for office. Therefore, even if CHAZ was an insurrection, it would be relevant only if we’re discussing the fate of an officeholder who instigated and then supported CHAZ. Is there anyone in DC who did that? If so, kick them out of office. Otherwise, shut up about it. (That’s directed at the people bringing it up, not you.)

            1. Indeed there are. Every single elected official who called these incidents ‘mostly peaceful’, dismissed the violence, excused the violence, or outright denied it is just as culpable in the same standard that has been applied to Trump here.

              Their actions and words provided an encouraging platform for which many took as a nod to continue the violence.

              So yes, there are a multitude of elected officials in DC and in other locations that should be brought up on charges to remove them from office.

              1. You have proven DMN right with your awful parallel between calling CHAZ mostly peaceful (which I did not see a lot of people say), and the actual incitement and lying about a stolen election Trump did.

                And then semanticing yourself into a somehow nonviolent revolt.

                So no, you have no idea what’s going on, or even it seems what words mean.

                I shouldn’t engage; it’s all willful blindness and bad faith.

                1. You’re insinuating or assuming here that I’m arguing that Jan 6 was nonviolent and that I am arguing against the impeachment. I am doing neither.

                  My reference perhaps was not clear enough about CHAZ. There were many other situations in which violence occurred that were called ‘mostly peaceful’. I did not say anyone said CHAZ in particular was mostly peaceful. My apologies for not being more clear on that.

                  CHAZ was a culmination of the laissez-faire attitude from the mayor and the dismissal of many politicians regarding ‘mostly peaceful’ violent protests over the course of the year. Their lack of candor on the violence, downplaying it as ‘nothing’ was just as effective a tool to continue that violence as were Trump’s actions.

                2. Sarcastro continues to believe that if he says “coup” and “insurrection” enough it will become true.

                  1. “Sarcastro continues to believe that if he says ‘coup’ and ‘insurrection’ enough it will become true.”
                    Which nicely balances your belief that if you keep denying the attempted insurrection, it magically stops being one.

    2. “So let me get this straight…”

      Is this code for “I’m going to start making some shit up now”?

  29. You do an impressive job demonstrating why leftist commies from Russia don’t belong in America.

  30. A weakness of the House brief is its treatment of Trump’s First Amendment defense. The brief spends most of its time arguing that the First Amendment doesn’t apply to imprachment at all, and then, at the end, very briefly, says that even if the First Amendment applies, Trump’s behavior meets the Brandenburg v. Ohio standard of incitement to imminent lawless action.

    They should have spent more space on the third argument, which I think was the correct one. In particular, rather than just make the bare argument, they should have provided specific facts clarifying why this is so.

    The brief mentioned some facts I wasn’t aware of when I wrote in comments on earlier posts that mere recklessness, not intent, would be sufficient to convict. The brief has evidence of intent I wasn’t aware of. For example, it mentions White House staff observation that Mr. Trump seemed delighted when his followers stormed the Capital and was suprised that his staff wasn’t similarly happy. It also mentions messages and tweets to followers who promised that they would help bring Congress to heel, prior to the rally. These facts would help establish that Mr. Trump fully intended for the Capitol to be stormed and had actively planmed for it to occur, which would easily meet the Brandenberg standard.

    In my view, even if one thinks Brandenberg doesn’t apply to impeachments in general, if it covers Mr. Trump’s conduct, there is no reason to go behond it.

    And I think Brandenberg does apply here. The reason is that I think that “Treason, felony, and other high crimes and misdemeanors” implies that impeachable conduct has to be criminal conduct, a higher standard than ordinarily applies to firing government officials. A president is independently elected by the states and the people and answerable to them, not hired by Congress. Congress has no power to fire him. In my view, this fundamental difference means that the constitutional standards for firing government officials simply do not apply. Instead, the Framers created a different, higher standard for impeachment cases, and this standard is similar to the constitutional standards for criminalizing conduct done by ordinary citizens.

    1. That last argument is not at all right. A president is not answerable to the states or the people, who have absolutely no say in the matter. They can’t fire him at all. If the president engages in wrongdoing, only Congress can step in. The president is not an elected king for four years. (The 2/3 requirement for removal prevents it from degenerating to the situation in which the president serves at the mere pleasure of Congress.)

      1. If the states and the people can’t fire a President, why isn’t Mr. Trump occupying the White House now?

        The ordinary process of hiring and firing is called “elections.” Electors can select a President for any reason or no reason, including taking into account whatever a President says. The First Amendment doesn’t apply at all. Its standards for hiring and firing ordinary employees are irrelevant to elections.

        The impeachment process is different. It’s a special emergency safety valve for particularly egregious misconduct not comparable to the ordinary process of hiring and firing.

        Presidents are hired on four-year contracts, breakable only for “treason, felony, and other high crimes and misdemeanors.” That’s nothing like the ordinary standards for firing. As I’ve in explained previous posts, in my view these words connote not just malfeasance but criminality. This is very different from ordinary employees, who can be fired for malfeasance. In my view, the First Amendment’s standards for hiring and firing ordinary government employees are as irrelevant to impeachments as they are to elections.

        1. If the states and the people can’t fire a President, why isn’t Mr. Trump occupying the White House now?

          Because his term expired. That was my entire point. Treating the election as the only chance to fire a president turns the president into a king for four years.

          In my view, the First Amendment’s standards for hiring and firing ordinary government employees are as irrelevant to impeachments as they are to elections.

          I agree, but in precisely the opposite direction. Unlike ordinary government employees, the president has no protection via the first amendment.

          1. I should clarify that of course I mean “no protection against impeachment/removal”; of course the president has the same protections as anyone else in the country against criminal prosecution.

            1. ” of course the president has the same protections as anyone else in the country against criminal prosecution.”

              Plus immunity from state criminal prosecution and the ability to fire any federal prosecutor who might try to bring a case against him, which are substantially beyond what anyone else in the country has. Why do you think Trump tried so hard to keep the job after losing the election?

          2. ” Treating the election as the only chance to fire a president turns the president into a king for four years.”

            this seems to coincide with Mr. Trump’s view.

    2. ” A president is independently elected by the states and the people and answerable to them, not hired by Congress. Congress has no power to fire him.”

      Not at present, because the people fired him last November. But the Congress does have the power to “fire” the President, if enough Representatives vote “aye” to the articles of impeachment and enough Senators vote to convict.

  31. By the way: “many of the Capitol rioters have explicitly said they did what they did because that’s what they thought that’s what Trump wanted.”

    As I recall “Son of Sam” went on a murder spree because he thought Sam wanted it.

    Did we blame the dog, or the guy imagining that the dog was telling him to kill people?

    1. When you gotta impute schizophrenia to all the insurrectionists to protect your guy, well, that’s just what you go and do.

      1. You’re an idiot.

        1. You’re right. And Sarc blames the dog

          1. With you two calling him an idiot, that must be a very smart fellow.

    2. When one person interprets a communication as sending him a particular message, perhaps that one person is crazy.

      But when a large number of people all interpret a communication as sending them a particular message, the argument that they are all crazy has less force. It becomes more plausible that perhaps this really was the message sent.

      And it becomes even more plausible when combined with additional evidence, including additional communications prior to the speech and evidence the President felt delight and was euphoric while the Capitol was being stormed. This is evidence that he also thought that this was the message.

      1. So when somebody says go “peacefully” and a group of people interpret that to mean “violently” the person who explicitly said “peacefully” is at fault.

        Wow, you got it not crazy at all.

        And just to be clear Sam the dog was very well spoken

        1. Sigh. When someone spends an hour ranting and raving about needing to use force (not to mention a full two months before that), and then spends 10 seconds perfunctorily saying “peaceful,” people might be forgiven for paying more attention to the months and hours rather than the seconds.

          1. What Trump wanted was for the Congress to not count the EC ballots, and ideally, for his mob to take possession of them. If that happened peacefully, that would have been OK. If it didn’t, that would have also been fine with Trump.
            The local TV news (might have been network coverage) showed an interview with a couple of “peaceful” insurrectionists in full retreat from the barricades, complaining of being pepper-sprayed when they went to storm the line. Suppose you tried to throw a revolution and there was opposition? And yes, the would-be insurrectionists did claim to be revolutionaries on-camera.

    3. “As I recall ‘Son of Sam’ went on a murder spree because he thought Sam wanted it.”

      An apt analogy, as both “protagonists” were highly delusional and not tethered to objective reality.

  32. Trump’s brief may be in the running for “lamest impeachment brief in US history.”

    (His lawyers probably only had 24 hours to write it, but whose fault is that?)

    1. That wasn’t his brief; that was his answer. His brief will come Monday.

      1. Which doesn’t mean he won’t still be in the running for “lamest impeachment brief in US history.”

  33. So far what I’ve seen in arguments is as follows:

    Impeachment doesn’t require a crime because it’s political, so all legal precedent doesn’t apply. But Trump committed a crime even if impeachment doesn’t require one because impeachment is political. And Republicans are bad because they’re going to play politics with the impeachment instead of treating it like an actual trial. But legal precedent doesn’t apply because it’s political.

    I love the circular reasoning here. Look I get that impeachment is political and precedent doesn’t necessarily apply. But reasoning that either party shouldn’t treat it as political after insisting that it is IN FACT political just seems completely asinine.

    Now on to my question which I am not sure has been answered.

    If the violence was planned and would have occurred regardless of Trump’s speech, what precedent sets that he is still responsible? Yes I know impeachment doesn’t require that standard, but we’re in a hypothetical here anyway so play along or feel free to show you lack comprehension of anything beyond “orange man bad.”

    1. If the violence was planned and would have occurred regardless of Trump’s speech,

      The second part does not follow from the first. Also, and I know nobody has mentioned this so it might have escaped you, but: it’s not all about his 1/6 speech. It’s about his course of conduct since at least 11/3 on.

      1. That makes impeachment a tawdry partisan tactic and unethical for any lawyer.

      2. So, vigorously objecting to an election process that you believe was fraudulent is illegal?

        1. vigorously objecting is some amazing spin. Well done.

          1. Unless you are a Democrat then you get celebrated in the media.

            1. You’re saying that all I have to do to get celebrated in the media is to become a Democrat?
              Hell, that might make it worth the effort.

          2. Jefferson Davis was just vigorously objecting to the election of Abraham Lincoln.

      3. If it’s about his course of conduct going further back, we have multiple elected members of Congress (and some state level elected officials) who endorsed, defended, and supported the insurrection activities which occurred in Portland and other areas of the country who should be held to the same standard.

        There were indications from people I know on the right that there would be violence on the 6th. The actions of Trump (go back as far as you like) mimic those of other politicians (and many news organizations) regarding the violence all last year.

        Equal application of the law is the point I’m trying to make here, not dismissal of the impeachment.

        1. See Sarc agrees with the BLM rioters cause so it”s OK if they riot.

          1. At least some in the media will, in a roundabout way, concede their bias. “At least BLM was protesting about something that matters…” was the line that was used a lot in the immediate aftermath of the capitol hill event.

            1. And my response to that is thus: When the elections occurred, did they vote out all the local and state politicians that entitled the very issues they are protesting out of office?

              If not, they’re protesting the very situation they themselves created by voting for the same people over and over.

              Of note, this isn’t a partisan issue. Anywhere one party rule continues unabated there are serious issues for the people, whether it’s R or D after the name.

              1. “And my response to that is thus: When the elections occurred, did they vote out all the local and state politicians that entitled the very issues they are protesting out of office?”

                Did they have the power to do so? Besides obvious questions like “are there enough of them to alter the outcome of elections?”, there’s also “say, what year do we elect local and state politicians, anyway?”

          2. See Sarc agrees with the BLM rioters cause so it”s OK if they riot.

            When did I say riots were okay?

            How often do you guys have to go back and put those words in my mouth?
            It’s like you don’t have a lot of straws left to grasp.

            1. “When did I say riots were okay? ”

              Doesn’t matter. They’ve decided that you are OK with riots, and that’s that. Settled. Making noise about it won’t change anything. If they had any fact-based arguments, they’d have gotten their talking points and you’d have seen them repeated a dozen times, with minor variations. They don’t got that, so what you see is “whatabout BLM?”

    2. “If the violence was planned and would have occurred regardless of Trump’s speech, what precedent sets that he is still responsible?”

      Depends on the evidence that Trump directed (or at least acquiesced in) the planning.

  34. Professor Somin:

    The defense filing is an answer, not a brief. Like any answer, it admits and denies allegations and briefly raises affirmative defenses. The defense brief isn’t die until February 8. Perhaps you could write an update mentioning this. Suggest withdrawing any opinion on the defense brief until it’s been filed.

    The answer, however, is informative and worth discussing:

    1. The main defense seems to be that the Senate lacks the power to try a former President

    2. In claiming that what President Trump said wasn’t false, the answer claims that all he said was that state officials relaxed requiremenrs in ways that departed from state law – in other words, he never claimed there was any fraud, just some state-law disputes. (In other words, they are claiming that what he said in his speeches and tweets was no different from what his lawyers said in court.)

    This claim seems rather vulnerable. There would seem to be a lot of evidence contradicting it.

    1. He could say that unicorns exist. He could give a lecture on why scientology makes sense. Saying allegedly false things is not an impeachable offense.

      If it was we’d already have about 30 articles to impeach Joe on.

      1. Unicorns do exist, just not the kind popularized by fantasy as a single horned horse.

        Tongue in cheek aside here, every former POTUS in my lifetime would probably have hundreds of articles to impeach if lying were used as the cause for impeachment.

    2. “1. The main defense seems to be that the Senate lacks the power to try a former President”

      If they’ve put all their money on this bet, they have a problem.

      “2. […]
      This claim seems rather vulnerable. There would seem to be a lot of evidence contradicting it.”

      Senator Graham is on record as not wanting to hear any evidence. Not sure if he speaks for his caucus, but it seems likely that he does.

  35. So the Chief Justice is not presiding over the impeachment? Because he says impeachment is only applicable to someone in office.

    Does the constitution say impeachment can be presided by the chief justice or someone the majority party picks?

    1. I think it does say that the Senate can choose someone if the Chief Justice is not available. Don’t quote me on that though, it’s a vague memory.

      1. Not interested in what some hack Reason author states unsubstantiated.

        Does the constitution state Chief Justice or just anyone the senate decides on? Would seem pretty pointless to specify a member of another branch of government, presumably for impartiality, only to revert to well if he doesn’t want to do it we’ll pick a partisan hack.

        1. It’s one sentence in the constitution. It says the chief justice shall preside. It doesn’t discuss substitutes

          1. It says, “When the President of the United States is tried the Chief Justice shall preside.” It is not clear if the Chief must preside when an ex-president is on trial.

          2. Here’s a better link. It says when POTUS is being tried the chief justice shall preside. It does not however limit them when other than POTUS is being tried.

            Reasoning this out, if we stuck with that sentence verbatim only a POTUS can be tried and only the chief justice can preside. But we know that’s not the case, so we also know that in the case of someone other than POTUS being tried would mean there are no other restrictions on who presides for those types of impeachment trials.

            https://constitution.congress.gov/browse/essay/artI-S3-C6-1-3-1/ALDE_00000708/

        2. Not interested in what some hack Reason author states unsubstantiated.

          You prefer reason commenters…?

        3. “Would seem pretty pointless to specify a member of another branch of government, presumably for impartiality, only to revert to well if he doesn’t want to do it we’ll pick a partisan hack.”

          Of course, the Chief Justice IS a partisan hack, so it’s not like anything changes if he just doesn’t wanna do it.

        4. “Does the constitution state Chief Justice or just anyone the senate decides on?”

          The Constitution is utterly silent about who presides over an impeachment trial when the Senate doesn’t start the trial until after there’s been a change in the identity of the President. Some people tried the argument that this means the trial is unconstitutional, but that argument was stupid and so normal people just ignored that one. “It’s not official unless the Chief Justice presides is ALSO stupid, but I suspect it is withdrawn now that the result of the trial was a majority voting for conviction but not enough of a majority to convict.
          all together now: “The acquittal doesn’t count because Roberts didn’t show up for the show!”

  36. What would make it “substantiated”? You want the court case that set the precedent for the situation that has never happened before?

  37. Interesting about Roberts not presiding. Is he keeping his powder dry to take part in a Supreme Case about the trial? That could point toward a possible move to disqualify Trump on a majority vote, even if he is acquitted. Otherwise, not much reason to worry about it, given Trump’s near-certain acquittal.

    1. One would think if he’s acquitted, he cannot be disqualified.

      1. Trump has been impeached. Arguably the penalties are several, and the notion of, “acquittal,” implies Trump escapes all penalties, not just removal. Maybe if the Senate votes to disqualify him, he is not acquitted. (I get that I muddled the distinction in my comment above.)

      2. “One would think if he’s acquitted, he cannot be disqualified.”

        Depends on the states. If enough of them think he’s disqualified, and decline to put him on the ballot or count write-ins for him, then he’s de facto disqualified from winning enough votes to win sufficient electoral votes to be elected President.

        Or Biden could just withdraw the Secret Service detail, and we wait to see if Trump develops a Novichok problem…

    2. “Is he keeping his powder dry to take part in a Supreme Case about the trial? ”

      If a court had jurisdiction, which it does not.

  38. Ilya Somin asserts: “The defense brief predictably raises both the free speech defense, and the claim that impeaching a former president is unconstitutional. But it fails to address any of the numerous flaws in these arguments pointed out by a variety of legal commentators across the political spectrum—and duly summarized in the House brief.”

    Somin is neither journalist nor legal scholar, but a political hack. The only truth Somin utters is this (addressing the “bill of attainder” aspect of Trump defense counsel’s argument that the Senate lacks jurisdiction to try trump): “I will mostly leave this issue to those with greater relevant expertise.”

    I HAVE relevant expertise. I have been a law professor since 1972. I have written many, well respected published law-texts. I have won constitutional arguments in the U.S. Supreme Court and the lower federal courts. I agree with the pertinent legal observations put in Leonard R. Jaffee, STRUCTURAL CRISIS: SENATE THREATENS TO USURP PRESIDENCY, CONSTITUTION, AND WILL OF THE PEOPLE, https://leonardrjaffee.substack.com/p/structural-crisis-senate-threatens-cd3
    Professor Jaffee’s article proves that clearly the Senate lacks jurisdiction to try Trump.

    What of Somin’s assertion that “[Trump defense counsel’s “brief”] fails to address any of the numerous flaws in these arguments pointed out by a variety of legal commentators across the political spectrum”? A truly competent and honorable legal scholar knows that the “variety of legal scholars” are acting not as lawyers or legal scholars but political hacks like Somin.

    I expect that Somin references a 21 January 2021 “Letter to Congress” that bears a text titled “Constitutional Law Scholars on Impeaching Former Officers,” https://www.politico.com/f/?id=00000177-2646-de27-a5f7-3fe714ac0000

    The above-cited “Letter to Congress” claims that all the numerous signatories are “constitutional law scholars” — though many are NOT such. The “Letter to Congress” argues that U.S. Constitution Article I § 3 clause 7 provides clearly that the Senate has jurisdiction to try an impeachment of an ex-President despite the impeachment did not reach the Senate until after the ex-President’s Office had ended and he vacated it. Quoted immediately below is the “Letter to Congress” argument-part that purports to construe Article I § 3 clause 7:

    [BEGIN QUOTE OF “Letter to Congress”]
    “…[T]he 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-forremoval 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. In order to give full effect to both Article I’s and Article II’s language with respect to impeachment, therefore, the correct conclusion is that former officers remain subject to the impeachment power after leaving office, for purposes of permitting imposition of the punishment of disqualification.

    “If impeachment were only a device for removing officials from office, then perhaps only current officers could be impeached. But disqualification is a consequence that might need to be imposed on prior officeholders as well as current ones. In keeping with that rationale, nothing in the text of the Constitution bars Congress from impeaching, convicting, and disqualifying former officials from holding future office. Indeed, the ability to try, convict, and disqualify former officials is an important deterrent against future misconduct. If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined.”
    [END OF QUOTE OF “Letter to Congress”]

    The “Letter to Congress” does not present an actual construction of Article I § 3 clause 7. The “argument” does not parse the language of Article I § 3 clause 7 or attempt any kind of logico-linguistic analysis of Article I § 3 clause 7’s precise terms. Rather, it is a specious policy-argument that would further the political policy aims of the Democrat Party and “never-Trump” Republicans. Its “construction” is merely an assertion of the conclusion the Democrat and “never-Trump” Republican signatories want the Senate to adopt and The People to believe. [Compare the thorough Article I § 3 clause 7 parsing and logico-linguistic analysis Professor Leonard R. Jaffee’s above-referenced article presents.]

    Then the “Letter to Congress” uses British “history” [WHICH IS IRRELEVANT] and an unsupported, heavily biased misrepresentation of the “history” of the “intention” the Framers pursued in including Article I § 3 clause 7 in the Constitution. That “history” would fit very well in a comic-book version of “The Making of a Nation.”

    Finally, the “Letter to Congress” relies on a misrepresentation of the 1876 Belknap case, which, as Professor Leonard R. Jaffee’s above-referenced article shows, is NOT precedent for the proposition that the Senate holds jurisdiction to try a civil Officer’s impeachment after the Officer’s Office has ended and he has vacated it.

    If a law-student had presented to me for grading the “arguments” the “Letter to Congress” adduces, I would have awarded the student’s presentation an “F” grade. The signatories do not have a legitimate argument. Hence they present fluff they expect to be credited because they believe they are lofty “Constitutional Law Scholars” who deserve obeisance. In drafting and signing their “Letter to Congress,” they acted not a lawyers, but as political hacks.

    Somin asserts that the House impeachment managers’s “brief” is a gloriously compelling, thorough, irresistible tour-d-force of prosecutorial lawyering. Actually, however, it is a fat jumble of frauds that would not survive a defense-counsel’s dismissal motion submitted in a criminal case filed in a legitimate judicial tribunal rather than a kangaroo court like the current Senate corrupted by a Democrat majority and a batch of “never-Trump” Republicans.

  39. REASON purports to be a “libertarian” journal that supports free speech. But twice is has declined to publish my comment that debunks the dangerously false assertions of Ilya Somin’s article — despite my comment is typical of the work of a proper, respectable law professor (which I am and have been since 1972). I cannot apprehend cause of NOT deducing that REASON is NOT what it purports to be. Shame.

    1. Correction of a typing error of my comment of February.3.2021 at 5:15 pm:

      But twice it has declined…. NOT “But twice is has declined….”

    2. More than one link in a comment and it doesn’t publish.

      But go off.

      1. Thank you for your advice “More than one link in a comment and it doesn’t publish” — despite your closing “But go off.”

        1. You speculated yourself into a paranoid accusation at reason.

          That was silly, but you seemed to be enjoying yourself. Thus, my advice: go off.

          1. Paranoid?

            I am a new REASON reader. I had no cause of imagining that REASON does not allow a comment to bear more than one internet link. I had only these facts:
            ** (a) Twice REASON declined to publish my comment that debunked the dangerously false assertions of Ilya Somin’s article.
            ** (b) Widely, frequently, and increasingly, mass media — “libertarian,” “liberal,” “progressive,” and “conservative” media — have censored, even blocked utterly, statements of politically “unacceptable” views.
            ** (3) My blocked comment did not bear any fowl, threatening, sexually charged, “racist,” or other arguably contemnible language. Hence, likely the comment-block’s basis was political.

            You wrote: “…you seemed to be enjoying yourself.” Unless you have ESP, you have no basis of presuming that I enjoyed myself by suffering the blocking of my comment or by feeling need of posting a protest opposing that blocking.

            I cannot resist observing that you seem inclined to write ungrammatically and with bad diction. In your February.4.2021 at 7:16 am comment addressed to me, you said my comment was “mostly ipse dixit with fancy-words.” The phrase ” with fancy words” is a prepositional phrase. All prepositional phrases are adverbial. The term “ipse dixit” was a noun in your assertion. So, you tried to modify a noun with an adverb.

            In your comment to which this comment replies, you wrote: “You speculated yourself into a paranoid accusation at reason.” One cannot speculate oneself into a paranoid accusation (as if by a speculation one can transport oneself into something). One cannot put oneself into a “paranoid accusation” by ANY means (as if one could insert one’s body, or psyche, INTO an accusation, or INTO any other linguistic assertion). With your phrase “accusation at reason,” again you try to modify a noun “accusation” with an adverb (prepositional phrase) “at reason.”

            Your pseudonym, “Sarcastr0,” bears interesting psychological implications. The ending letter, “O” [upper case “O” (or is it a zero?)] and the end-syllable “trO” consitute childish cuteness. Your whole pseudonym suggests a liking, perhaps even a quasi-worship, of sarcasm. Sarcasm reflects a child’s mind, a mind lacking sophisticated, or even mature, imagination, and surely lacking WIT. Wit? I mean what you will encounter if you understand la plus belle langue and view this fine French film: https://www.youtube.com/watch?v=2nlObCb4gOk://www.youtube.com/watch?v=2nlObCb4gOk

            1. ” My blocked comment did not bear any fowl”

              leave the birds and the bears out of it.

              1. Thank you for correcting my typing error. I type very badly. Witness my comments that correct my typing errors appearing in my other comments.

                My Naughty Fingers
                © 2021 by Anachronis

                My tameless digits relish casting errors, even working dire mischiefs — though they are just childish imps, not devils or felons.

                My self-misguided fingers are not designedly perverse. They suffer quasi-dyslexia — gleefully.

                Giggling, they add, subtract, repeat, and transpose letters, words, and phrases, even whole clauses.

                They cut then fail to paste or paste errantly or twice, even thrice, or neglect to delete what my editor-brain intends to excise.

                They try to spell phonetically — though many English words insist that their spelling defy the sound of logic & logic of sound [laugh, giraffe, daughter, water, women, woman, comb, tomb, aplomb, plumb, wound (lesion), wound (past tense of wind, meaning to spool, coil, twine), wind (moving air), wind (present tense of to spool, coil, twine)] or sound like others spelled differently & meaning distinct things (led, lead, its, it’s, there, their, they’re, cant, can’t, real, reel, sent, scent, cent, maid, made, naut, naught, nought, taut, taught, sight, site, cite, rite, rite, write, wright, wine, whine, through, threw, wrung, rung, wrote, rote…).

                Desperate to teach them to perform correctly, oft I have forced the guilty digits to stand in a corner for several hours, then sent them to bed hungry (without my having fed them supper). I hoped such behaviorist conditioning would rectify their work-conduct. But they remain refractory, even wildly unrighteous.

                I considered use of the iron maiden — the two balancing each other, one Yang, the other Yin. And I have peeked through the stained glass window of that lovely nostalgic curio shoppe nestled down on Northeast 80437th Street — yes, that museum-like boutique of Torquemada XIV, the most sorrowfully terminal male descendent of the eponymous first patriarch one of the Iberian Peninsula’s highest holy families,

                I have commanded myself: “Forgive them. They know not what they do.” But woefully my poor digits’ intrepid defiance has shown, beyond doubt, that forgiveness, even holy torture, will not render cure.

                Just one hope remains: I must remit my naughty fingers to a blazing auto-da-fé.

                Will you donate ten tiny stakes, and scrap-wood and straw, and a flintlock, too? Maybe also a crass sadistic crowd? The Grand Inquisitor will repay you. Email recompense-request to:
                save_by_fire@high_conflagration.purificación_celestial.666

            2. “Your pseudonym, “Sarcastr0,” bears interesting psychological implications. The ending letter, “O” [upper case “O” (or is it a zero?)] and the end-syllable “trO” consitute childish cuteness. Your whole pseudonym suggests a liking, perhaps even a quasi-worship, of sarcasm. Sarcasm reflects a child’s mind, a mind lacking sophisticated, or even mature, imagination, and surely lacking WIT. Wit? I mean what you will encounter if you understand la plus belle langue and view this fine French film: ”

              After you scolded him for describing HIS perception of YOUR mood based on a previous posting, you go on to offer some $.25 psychoanalysis of his chosen handle. Was this irony intentional?

              1. I criticized his “handle,” not necessarily his psyche, personality, mind, hair-color…….

    3. Professor Anachronis, is that you?!

  40. Ilya Somin asserts: “The defense brief predictably raises both the free speech defense, and the claim that impeaching a former president is unconstitutional. But it fails to address any of the numerous flaws in these arguments pointed out by a variety of legal commentators across the political spectrum—and duly summarized in the House brief.”

    Somin is neither journalist nor legal scholar, but a political hack. The only truth Somin utters is this (addressing the “bill of attainder” aspect of Trump defense counsel’s argument that the Senate lacks jurisdiction to try trump): “I will mostly leave this issue to those with greater relevant expertise.”

    I HAVE relevant expertise. I have been a law professor since 1972. I have written many, well respected published law-texts. I have won constitutional arguments in the U.S. Supreme Court and the lower federal courts. I agree with the pertinent legal observations put in Leonard R. Jaffee, STRUCTURAL CRISIS: SENATE THREATENS TO USURP PRESIDENCY, CONSTITUTION, AND WILL OF THE PEOPLE, https://leonardrjaffee.substack.com/p/structural-crisis-senate-threatens-cd3
    Professor Jaffee’s article proves that clearly the Senate lacks jurisdiction to try Trump.

    What of Somin’s assertion that “[Trump defense counsel’s “brief”] fails to address any of the numerous flaws in these arguments pointed out by a variety of legal commentators across the political spectrum”? A truly competent and honorable legal scholar knows that the “variety of legal scholars” are acting not as lawyers or legal scholars but political hacks like Somin.

    I expect that Somin references a 21 January 2021 “Letter to Congress” that bears a text titled “Constitutional Law Scholars on Impeaching Former Officers,” available at w w w dot politico dot com /f/?id=00000177-2646-de27-a5f7-3fe714ac0000

    The above-cited “Letter to Congress” claims that all the numerous signatories are “constitutional law scholars” — though many are NOT such. The “Letter to Congress” argues that U.S. Constitution Article I § 3 clause 7 provides clearly that the Senate has jurisdiction to try an impeachment of an ex-President despite the impeachment did not reach the Senate until after the ex-President’s Office had ended and he vacated it. Quoted immediately below is the “Letter to Congress” argument-part that purports to construe Article I § 3 clause 7:

    [BEGIN QUOTE OF “Letter to Congress”]
    “…[T]he 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-forremoval 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. In order to give full effect to both Article I’s and Article II’s language with respect to impeachment, therefore, the correct conclusion is that former officers remain subject to the impeachment power after leaving office, for purposes of permitting imposition of the punishment of disqualification.

    “If impeachment were only a device for removing officials from office, then perhaps only current officers could be impeached. But disqualification is a consequence that might need to be imposed on prior officeholders as well as current ones. In keeping with that rationale, nothing in the text of the Constitution bars Congress from impeaching, convicting, and disqualifying former officials from holding future office. Indeed, the ability to try, convict, and disqualify former officials is an important deterrent against future misconduct. If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined.”
    [END OF QUOTE OF “Letter to Congress”]

    The “Letter to Congress” does not present an actual construction of Article I § 3 clause 7. The “argument” does not parse the language of Article I § 3 clause 7 or attempt any kind of logico-linguistic analysis of Article I § 3 clause 7’s precise terms. Rather, it is a specious policy-argument that would further the political policy aims of the Democrat Party and “never-Trump” Republicans. Its “construction” is merely an assertion of the conclusion the Democrat and “never-Trump” Republican signatories want the Senate to adopt and The People to believe. [Compare the thorough Article I § 3 clause 7 parsing and logico-linguistic analysis Professor Leonard R. Jaffee’s above-referenced article presents.]

    Then the “Letter to Congress” uses British “history” [WHICH IS IRRELEVANT] and an unsupported, heavily biased misrepresentation of the “history” of the “intention” the Framers pursued in including Article I § 3 clause 7 in the Constitution. That “history” would fit very well in a comic-book version of “The Making of a Nation.”

    Finally, the “Letter to Congress” relies on a misrepresentation of the 1876 Belknap case, which, as Professor Leonard R. Jaffee’s above-referenced article shows, is NOT precedent for the proposition that the Senate holds jurisdiction to try a civil Officer’s impeachment after the Officer’s Office has ended and he has vacated it.

    If a law-student had presented to me for grading the “arguments” the “Letter to Congress” adduces, I would have awarded the student’s presentation an “F” grade. The signatories do not have a legitimate argument. Hence they present fluff they expect to be credited because they believe they are lofty “Constitutional Law Scholars” who deserve obeisance. In drafting and signing their “Letter to Congress,” they acted not a lawyers, but as political hacks.

    Somin asserts that the House impeachment managers’s “brief” is a gloriously compelling, thorough, irresistible tour-d-force of prosecutorial lawyering. Actually, however, it is a fat jumble of frauds that would not survive a defense-counsel’s dismissal motion submitted in a criminal case filed in a legitimate judicial tribunal rather than a kangaroo court like the current Senate corrupted by a Democrat majority and a batch of “never-Trump” Republicans.

    1. Are you the same Leonard Jaffee who Richard Posner observed was completely irrational? Or are you a different Leonard Jaffee who is completely irrational?

      1. I am not any Leonard R. Jaffee. He was my colleague of the Washington University (St Louis) law faculty in 1986 and 1987. He has the best legal mind I know.

        Richard Posner is a neoliberal freak. He frothed at the mouth when he read Prof. Jaffee’s article, because Prof. Jaffee showed his (Posner’s ) “Law and Economics” is the toxic dreck it is.

        And, you? I have read your comments. You have the mind of a want-to-be ambulance-chaser-lawyer who cannot rise from being a cancer-ridden moray eel.

        Taisez-vous, Monsieur le Crétin.

        1. Political hack
          fat jumble of frauds
          Democrat majority
          neoliberal freak
          toxic dreck
          want-to-be ambulance-chaser-lawyer
          cancer-ridden moray eel
          le Crétin

          You do like the name calling. A bit partisan…perhaps, hackish?

          Rather undercuts your appeal to your own expertise, to be sure.

          Indeed, your argument above is hardly an argument. It’s mostly ipse dixit with fancy-words.

          Jargon and table pounding won’t get you where you want to go.

          1. PREFACE

            Because my professional workload is very heavy today, I lack spare time enough to proofread the following text. I type badly — commit typing errors somewhat often. I apologize now for any tying errors that may mar the following text.

            =======

            INTRODUCTION

            Your comment puts two attacks. You ought to have separated them.

            One attack [hereinafter “ATTACK (1)”] assaults the quality of my February.3.2021 at 8:58 pm comment’s substantive criticisms of Ilya Somin’s article, the “briefs”[sic] of the “House impeachment managers,” and the “legal commentators” [sic] on whom, partly, Somin relies. [Hereinafter I shall call my February.3.2021 at 8:58 pm comment “my main comment.”]

            The other attack assaults certain language-terms that appear in my main comment and my February.4.2021 at 3:08 am comment replying to David Nieporent’s February.4.2021 at 1:43 am comment.

            ATTACK (1)

            This attack is much a straw-man mis-argument. It sets the false premise that my main comment puts affirmative arguments, then it attacks the nonexistent affirmative arguments fundamentally and ultimately with the criticism that the nonexistent arguments reduce to “ipse dixit [an unproven assertion lacking authority] with fancy-words” [sic, phrase attempts to modify nun with adverb].

            My main comment tit not put an affirmative argument — anywhere. It bore only assertions that Solin and Solin’s “legal commentators” did not present a legitimate argument. Hence, e.g., my main comment observed:

            “The ‘Letter to Congress’ does not present an actual construction of Article I § 3 clause 7. The ‘argument’ does not parse the language of Article I § 3 clause 7 or attempt any kind of logico-linguistic analysis of Article I § 3 clause 7’s precise terms. Rather, it is a specious policy-argument that would further the political policy aims of the Democrat Party and ‘never-Trump’ Republicans. Its ‘construction’ is merely an assertion of the conclusion the Democrat and ‘never-Trump’ Republican signatories want the Senate to adopt and The People to believe. [Compare the thorough Article I § 3 clause 7 parsing and logico-linguistic analysis Professor Leonard R. Jaffee’s above-referenced article presents.]”

            That main comment observation addressed, e.g., the immediately-below-quoted “legal commentors” “argument” — purporting to construe Article I § 3 clause 7:

            “…[T]he 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-forremoval 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. In order to give full effect to both Article I’s and Article II’s language with respect to impeachment, therefore, the correct conclusion is that former officers remain subject to the impeachment power after leaving office, for purposes of permitting imposition of the punishment of disqualification.

            “If impeachment were only a device for removing officials from office, then perhaps only current officers could be impeached. But disqualification is a consequence that might need to be imposed on prior officeholders as well as current ones. In keeping with that rationale, nothing in the text of the Constitution bars Congress from impeaching, convicting, and disqualifying former officials from holding future office. Indeed, the ability to try, convict, and disqualify former officials is an important deterrent against future misconduct. If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote. The Framers did not design the Constitution’s checks and balances to be so easily undermined.”

            Nowhere do the “legal commentors” present any actual construction of Article I § 3 clause 7. The “legal commentors” do quite what you assert my main comment did — put “ipse dixit” assertions bearing “fancy words” but zero language-construction content and zero legitimate, cogent authority-suport. Hence, in its content that addressed the above-quoted language of the “legal commentors,” my main comment presented a FACT, not any mere “fancy words” assertion reducing to “ipse dixit” assertion.

            You cannot pont to any “Letter to Congress” language that construes THE LANGUAGE of Article I § 3 clause 7. The “Letter to Congress” does not bear anything even distantly resembling a construing of Article I § 3 clause 7. The You cannot reference anything of the Constitutional Convention’s history — e.g., the Federalist Papers — that can support, with any legitimate logic, any of the above-quoted policy-assertions of “Letter to Congress.” No such history occurred.

            Except its final paragraph, my main comment relied on the affirmative arguments Prof. Leonard R. Jaffee presented in his artice STRUCTURAL CRISIS: SENATE THREATENS TO USURP PRESIDENCY, CONSTITUTION, AND WILL OF THE PEOPLE, https://leonardrjaffee.substack.com/p/structural-crisis-senate-threatens-cd3

            Prof. Jaffee’s evidence-presentations, fact-observations, authorities, and arguments constitute most of my main comment’s premises. Prof. Jaffee’s article is not a set of ipse dixit assertions. Its introductory portion is good journalism and its body a well-supported, masterly argued, excellent jurisprudential essay. Read it.

            When I wrote my main comment’s final paragraph, I had determined not to present proofs because already my main comment had become unusually long for posting on an online journal’s comment-thread. So, my main comment’s final paragraph is a set of conclusory opinions, not argument(s). But the involved opinions do enjoy support in the legal literature pertaining to matters of the first amendment, sedition, and incitement of riot or insurrection. Since this comment is, now, rather unusually long, I shall not elaborate.

            That final paragraph’s term “fat jumble of frauds” is supported not only by the utter lack of evidence that could support a finding that Trump’s 6 January 2021 rally speech constituted unlawful incitement of anything and by the record of Democrat and never-Trump sedition [“sedition” used here as in pre-20th-century English law usage] — the litigation seeking to overturn Trump’s perfectly lawful “travel bans,” the illegitimate criticisms and litigations challenging Trump’s quite legitimate immigration policy, “Russiagate,” the first impeachment, the second impeachment……

            I disapproved much of Trump’s Presidential actions, especially his actions respecting the illegal non-state Israel, Zionist genocidal treatment of Palestinians, and the illegal military actions Israel prosecuted against Syria, Iran, and other Moslem majority nations of the Middle East. My concern is that since Lyndon B Johnson became President, Democrat politicians, then Republican and Democrat neoliberals and neoconservatives and their clients have been disintegrating our democracy and trashing our constitution. The Trump impeachments are reflections of thaat disintegration.

            The “Letter to Congress” IS the work of “political hacks,” not constitution scholars or lawyers. “Letter to Congress.” My main comment observed the reasons rather abstractly. The reasons are observed fully in Prof. Jaffe’s above-cited article, which presents a thorough, proper consturction of Article I § 3 clause 7 and the pertinent history of impeachments and Senate trials of impeached civil Officers.

            ATTACK (2)

            You contemn my February.4.2021 at 3:08 am comment’s terms “neoliberal freak,” “toxic dreck,” “want-to-be ambulance-chaser-lawyer,” “cancer-ridden moray eel,” and “le Crétin.”

            But you do not observe that in his February.4.2021 at 1:43 am comment, David Nieporent wrote: “Are you the same Leonard Jaffee who Richard Posner observed was completely irrational? Or are you a different Leonard Jaffee who is completely irrational?”

            David Nieporent asserted falsely that I am Professor Jaffee. Twice he called Prof. Jaffee “irrational” — and intended to apply that derisive word to me. THAT is why I responded as I did — after I researched David Nieporent and discovered that he is, at best, a low-grade attorney and that his REASON comments tend to include unjustified ad hominem attacks and unsupported, evidence-belied, or illogical assertions. David Nieporent’s comment February.4.2021 at 1:43 am comment rendered him deserving of the insults I directed at him. [Later, Sarcastr0, I shall reply to your February.4.2021 at 7:11 am comment, which lives at a level low as David Nieporent February.4.2021 at 1:43 am comment.]

        2. He has the best legal mind I know.

          For the record, this wasn’t the high praise you thought it was.

          1. Because my professional workload is very heavy today, I lack spare time enough to proofread the following text. I type badly — commit typing errors somewhat often. I apologize now for any tying errors that may mar the following text.

            =========

            You wrote:

            “He [Prof. Jaffee] has the best legal mind I know.

            For the record, this wasn’t the high praise you thought it was.”

            Your second sentence is ungrammatical. The starting phrase “For the record” is a prepositional phrase. All prepositional phrases are adverbial. Your second sentence’s starting phrase is a dangling adverb (dangling propositional phrase). It does not refer grammatically/logically to any term, terms, phrase, or clause of the rest of your second sentence. The [per you] “high praise did not occur “for the record” [And, one must wonder: WHAT “record.”]

            Your sophomoric quip seems to imply that Prof. Jaffee’s ming is not fine or very fine and that, therefore, if Prof. Jaffee’s mind is the finest I know, I have not known very fine minds or even any fine minds.

            Your professional record, Mr. Nieporent, does not include your having won many, or even ANY, U.S. Supreme Court cases or your having written a published law review article of book that has drawn praise or use, or citation of important courts or notable members of the legal professional community. Prof. Jaffe, however, has a long record of just such praise, Supreme court victories and praise or use, or citation of important courts or notable members of the legal professional community.

            When I was Prof. Jaffee’s Washington University law school colleague, he discussed with me his part of the petitioner’s brief of the case of Shapero v.Kentucky Bar Assn., 486 U.S. 466 (1988), https://supreme.justia.com/cases/federal/us/486/466/

            A Kentucky attorney, Donald L. Cox (senior partner of a mid-size Louisville law firm, Lynch, Cox, Gilman & Goodman), was petitioner’s counsel. He had asked Prof. Jaffee to advise him (Mr. Cox) respecting the content of petitioner’s brief.

            Prof. Jaffee provided more than advice. He supplied a substantial part of the petitioner’s brief.

            Mr. Cox expressed a bit of doubt concerning Prof. Jaffee’s offering, because (Mr. Cox felt) the offering was a policy argument and, hence, not likely a winner. Prof. Jaffee assured Prof. Jaffee the offering would be a winner. It did win. And Mr. Cox phoned Prof. Jaffe and expressed surprise for the Court’s having implied during oral argument that Prof. Jaffee’s policy argument would win the case.

            Prof. Jaffee acted a Mr. Cox’s consultant several time. Eventually, Mr. Cox told Prof. Jaffee, in writing: “Leonard, you’re the smartest lawyer I know (though your social skills migh benefit from a little improvement).” I recall that statement, because, wearing a wry grin, Prof. Jaffee showed it to me.

            Because of your comment, I contacted Prof. Jaffee today and asked him to send me a short list of publications (judicial decisions, law review articles, books, or other publications) that have cited my favorite of Prof. Jaffee’s pieces of published scholarship, Leonard R. Jaffee, Of Probativity and Probability: Statistics, Scientific Evidence, and the Calculus of Chance
            at Trial, 46 University of Pittsburgh Law Review 925 (1985) (major work, 157 pages). He sent this short list, extracted form his Résumé’s longer list:
            * State v. Spann, 617 A.2d 247 (N.J. 1993)
            * Snowden v. State, 574 So.2d 960, 966 (Alabama App. 1990)
            * State v. Valley, 571 A.2d 579 (Vt. 1989)
            * Susan Haack, EVIDENCE MATTERS: SCIENCE, PROOF, AND TRUTH IN THE LAW page 6 & note 39 (Cambridge Univ. Press 2014)
            * K. Clermont, Death of Paradox: The Killer Logic Beneath the Standards of Proof, 88 Notre Dame L Rev. 1061, n. 45 (2013)
            * Lola Romanucci-Ross & Laurence R. Tancredi, WHEN LAW AND MEDICINE MEET: A CULTURAL VIEW Bibliography (2004)
            * Michael Abramowicz, A Compromise Approach to Compromise Verdicts, 89 Cal. L. Rev. 231 n. 74 (2001)
            * Alexandra Manolidou, Economics, Morality and the Civil Burden of Proof, UCL Jurisprudence Rev. 2001, at 248, quoting Prof. Jaffee’s article & citing B. Robertson & G.A. Vignaux, ‘Probability—The Logic of Law’, (infra, at p. 458), which cites Prof. Jaffee’s article
            * Derry Ridgway, Innocent of Empirical Rigor, 14 St. Thomas L. Rev. 165 n. 336 (2001)
            * Erica Beecher-Monas, The Heuristics of Intellectual Due Process: A Primer for Triers of Science, 75 N.Y.U. L. Rev. 1563 n. 543 (2000)
            * Julianne Kokott, THE BURDEN OF PROOF IN COMPARATIVE AND INTERNATIONAL HUMAN RIGHTS LAW: CIVIL AND COMMON LAW APPROACHES WITH SPECIAL REFERENCE TO THE AMERICAN AND GERMAN LEGAL SYSTEMS, 262, Bibiography (1998)
            * WEINSTEIN’S EVIDENCE § 401-5 (1994)
            * GIANNELLI & IMWINKELREID, SCIENTIFIC EVIDENCE, n. 267 (2d ed. 1993)
            * B. Robertson & G.A. Vignaux, Probability-The Logic of Law, Oxford J. of Legal Studies, V. 13 # 4, pp. 457-478, at 458 (1993)
            * Andre Moenssens, Foreword: Novel Scientific Evidence in Criminal Cases: Some Words of Caution, in Symposium on Scientific Evidence, 84 J. of Crim. L. 1, n. 51 (1993)
            * Melissa Moore Thompson, Causal Inference in Epidemiology: Implications for Toxic Tort Litigation, 71 N. Carolina L. Rev. 247, 265 (1992)
            * Neil B. Cohen & Aaron D. Twerski, A First Look at the New Era of Medical Statistics, in Symposium: Comparing Medical Providers, 58 Brooklyn L. Rev. 5, n. 34 (1992)
            * GIANNELLI & IMWINKELREID, SCIENTIFIC EVIDENCE (1st ed. 1986), in 1991 Cumulative Supplement, at p. 83 (adding new main text page 504) n. 241.1
            * Honorable Jack B. Weinstein, Scientific Evidence in Complex Litigation, C607 ALI-ABA 709, n. 110 (1991) (Judge Weinstein was long the Chief Judge, Federal District Court, Southern Dist. N.Y. and now is retired Senior Judge of the same court, and he is principal author of WEINSTEIN’S EVIDENCE)
            * D. McCord, A Primer for the Nonmathematically Inclined on Mathematical Evidence in Criminal Cases: People v. Collins and Beyond, 47 Wash. & Lee L. Rev. 741, n. * & nn. 7, 26, 36, 44, 56, 58, 211, 284 (1990) — the author saying (n. 56) that Prof. Jaffee won the debate he fought with David Kaye, leading apostle of statistical litigation-proof
            * Robert Hupe, The Development of DNA Fingerprint Use in Courts of Law, 19 Southwestern U. L. Rev. 1045, n. 128 (1990)
            * David Gerecke, Risk Exposure as Injury: Alleviating the Injustice of Tort Causation Rules, 35 McGill Law Journal 797, at p. 812 n. 66 (1990)
            * Constance R. Lindman, Sources of Judicial Distrust of Social Science Evidence: A Comparison of Social Science and Jurisprudence, 64 Indiana L. J. 755, n. 56 (1989)
            * 4 AMERICAN JURISPRUDENCE 3d, Proof of Facts 229, 293-94 (1989)
            * R. Radford, Statistical Error and Legal Error: Type One and Type Two Errors and the Law, 21 Loyola L.A. L. Rev. 843, 845 n. 15 (1988)
            * Honorable Jack B. Weinstein, Expert Testimony and Novel Scientific Evidence in Toxic Tort Litigation, C317 ALI-ABA 895, n. 54 (1988)
            * Kevin M. Clermont, Procedure’s Magical Number Three: Psychological Bases for Standards of Decision, 72 Cornell L. Rev. 1115, 1120 (1987)
            * Honorable Jack B. Weinstein, The Role of Expert Testimony and Novel Scientific Evidence in Proof of Causation, 341 PLI/LIT 7, n. 40 (1987)
            * MOENSSENS, INBAU, AND STARRS, SCIENTIFIC EVIDENCE IN CRIMINAL CASES 489 n. 13 (3d ed. 1986)—the authors saying my work poses powerful contraindications of much
            statistical evidence
            * Steve Gold, Causation in Toxic Torts: Burdens of Proof, Standards of Persuasion, and Statistical Evidence, 96 Yale L. J. 376 (1986)
            * David McCord, Expert Psychological Testimony About Child Complainants in Sexual Abuse Prosecutions: A Foray Into the Admissibility of Novel Psychological Evidence, 77 J. of Crim. Law 1, at 56, footnote 278 (1986)
            * Honorable Jack B. Weinstein, Improving Expert Testimony, 20 U. of Richmond L. Rev. 483 n. 37, 489 n. 67 (1986)
            * Richard W. Wright, Causation in Tort Law, 73 Cal. L. Rev. 1735, n. 363 (1985)

            In judicial and academic recognition of a law professor’s published work, one finds the most telling index of the professor’s competence. The average law review article receives about 0.3 published recognitions, and many receive none. Only rarely does recognition continue to mount after the first year or two following the object’s publication. So, the preceding list is strong evidence that Prof. Jaffee is an eminent Professor of Law.

            Donc, une autre fois, je vous demande: taiser-vous, Monsieur le Crétin.

            1. In my comment to which this is a “reply,” I included a list of works that cite one of Prof. Jaffee’s major works, Leonard R. Jaffee, “Of Probativity and Probability: Statistics, Scientific Evidence, and the Calculus of Chance at Trial,” 46 University of Pittsburgh Law Review 925 (1985). As my comment indicated, I obtained the list from Prof. Jaffee.

              I tried to edit the list so that it would not appear as it may in Prof. Jaffee’s Résumé, from which Prof. Jaffee extracted the list to send to me. Alas, I failed to edit out one instance of the term “my” — in the list entry “* MOENSSENS, INBAU, AND STARRS, SCIENTIFIC EVIDENCE IN CRIMINAL CASES 489 n. 13 (3d ed. 1986)—the authors saying my work poses powerful contraindications of much statistical evidence”

              The entry ought to be “”* MOENSSENS, INBAU, AND STARRS, SCIENTIFIC EVIDENCE IN CRIMINAL CASES 489 n. 13 (3d ed. 1986)—the authors saying Prof. Jaffee’s work poses powerful contraindications of much statistical evidence”

              Sorry.

            2. Typing error correction:

              The error occurred in the following paragraph. The correction appears in ALL-UPPER-CASE typeface and is enclosed with ** before and after.

              “Mr. Cox expressed a bit of doubt concerning Prof. Jaffee’s offering, because (Mr. Cox felt) the offering was a policy argument and, hence, not likely a winner. Prof. Jaffee assured **MR. COX** the offering would be a winner. It did win. And Mr. Cox phoned Prof. Jaffe and expressed surprise for the Court’s having implied during oral argument that Prof. Jaffee’s policy argument would win the case.”

          2. “Your second sentence is ungrammatical”

            But not wrong.

            1. I am sorry for your being unable to read.

  41. Assume that Trump believes the election was stolen from him, which is likely true, after listening to the call to the Georgia Secretary of State. So his speech specified a peaceful march on the capitol. Could he have done more to tamp down the mob? Certainly. That he didn’t, is impeachable?

    1. Trump is not accused of failing to tamp down the mob. He is accused of (inter alia) firing up the mob.

    2. “Could he have done more to tamp down the mob? Certainly. That he didn’t, is impeachable?”

      Quite possibly, But we’ll never know, as the House didn’t accuse him of that, and won’t consider any other articles of impeachment against him, what with him having LOST the ELECTION already.

  42. Ilya, this increasingly convinces me that domestic harmony in this country would be improved by deporting you to wherever you are from.

    I don’t say that lightly — you are stirring up stuff that is best not stirred up, and if you want to talk “greater good” then the “greater good” would be in deporting you. Now as to civil rights, I don’t see you overly concerned about Trump’s, and hence why should we care about yours?
    https://wp.me/PabmCn-ot

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