Defining a Theory of "Public" and "Private" Offenses for Impeachment

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[This post was co-authored by Josh Blackman and Seth Barrett Tillman]

Introduction.

The Constitution enumerates three categories of offenses that warrant impeachment: "Treason," "Bribery" and "other high Crimes and Misdemeanors." During President Trump's first impeachment trial, his counsel took the position that only established crimes—such as those codified in the U.S. Code—could be "high Crimes and Misdemeanors" for purposes of the impeachment process. We disagreed. At the time, we did not have the occasion to explain in what circumstances impeachment could be premised on allegations other than established crimes, such as an "abuse of power." 

The situation is now different. President Trump's second impeachment has reopened that question. And here, we will sketch an answer to that question. We approach this question with some caution. The original meaning of the phrase "high Crimes and Misdemeanors" in the Constitution is of uncertain scope. And the materials we have from the Philadelphia Convention, the state conventions, and the public ratification debates do not provide clear answers to the precise question we face today. Likewise, past impeachments provide inconclusive, and at times, conflicting precedents. Our writings here should be viewed in the same light as our prior writings on the First Amendment: Senators, acting in good faith, could come to conclusions which diverge from our own. We put these views out to start a conversation, not to authoritatively settle one. 

Some commentators may believe that the phrase "high Crimes and Misdemeanors" in the Constitution had no fixed meaning circa 1788. So, they would contend, that phrase extends to whatever allegations a majority of the House and 2/3 of the Senate choose to act upon. For these commentators, this phrase assigns to the House and Senate an unlimited discretion that is akin to a parliamentary vote of no confidence, though, administered through a Senate supermajority. Proponents of this view have not offered any systematic or reasoned basis in support of this position. And we reject this view for the reasons discussed below.

I. Distinguishing Public Offenses and Private Offenses: An Introduction.

Historically, the phrase "high Crimes and Misdemeanors" in the Constitution has been understood to flow from two significantly different types of purported wrongs. First, under the traditional view, there are public offenses. And second, as part of a more modern consensus understanding, there are private offenses. Some commentators believe only one of these two views is correct; others believe both views can support an impeachment charge. We take no position here: we explain both views for analytical purposes.

First, an article of impeachment can allege that a defendant committed a public offense. Here, the defendant allegedly violated the duties that flow from his public station, office, or position. These duties are akin to the equitable duties that a fiduciary owes his principals. The precise scope of these duties is not strictly tied down to positive law, such as statutes. Rather, the impeachment process based on a public offense can be based on broader established principles akin to fiduciary law. 

Second, an article of impeachment can allege that a defendant committed a private offense. Here, the defendant is not charged with violating any duties that flow from his public station, office, or position. Rather, with private offenses, the impeached officer is alleged to have violated a duty that the defendant shares in common with all other citizens. Such wrongs are defined by established positive law, such as statutes. In the impeachment process where a private offense is charged, the broader principles of established fiduciary law are not relevant. Why? Because the charged officeholder was not acting in his role as a fiduciary or officeholder. He did not use confidential information that came to his attention as a result of his public station. Nor did the charged officeholder use government property or personnel. And the charged officeholder did not use powers that were his to administer by virtue of holding his public station, office, or position. In such cases, we think the impeachment proceedings should align with the same body of substantive law that all other citizens face. Specifically, the charged officer should be able to rely on the full body of established substantive law. And that law includes the elements of the offense, its mens rea, and defenses available to otherwise similarly situated non-officeholders. The category of private offenses includes federal felonies. We assume most such felonies are of sufficient gravity to amount to a "high Crime and Misdemeanor," but we acknowledge the possibility that some felonies might fall short of that standard. 

II. The House's and Senate's Law-making Role: Public and Private Offenses.

When a person assumes an office, he accepts certain fiduciary-like duties. And under the Constitution, certain officeholders can be impeached for violating those duties. These violations are public offenses. The House and Senate have some flexibility or leeway in defining "fiduciary" violations, just as courts with equitable jurisdiction have when adjudicating fiduciary duty claims. In the impeachment process, when adjudicating such public offenses, the House and Senate have something akin to a law-making role, though that role is not unlimited.

Alternatively, an officeholder, as a citizen, is still subject to all other laws. If he violates those other laws, he can be tried in a court of competent jurisdiction. And the officeholder can be impeached by the House and tried by the Senate for that same conduct. (Again, we table the question of whether the legal violation associated with a private offense is of sufficient gravity to warrant impeachment proceedings.) But if the House seeks to impeach the officeholder for such a private offense—the same sort of offense that all other citizens are subject to—the House and Senate should rely on the established law for that private offense. We suggest that the only basis to impeach an officeholder for a private offense is the established law that governs that private offense. And that established law includes the offense's elements, its mens rea, and defenses available to otherwise similarly situated non-officeholders. The House should not be able make up standards for private offenses, ex post and ad hoc. And if there is no established law governing that purported wrong, then there is no private offense. When impeaching for private offenses, the House and Senate generally cannot engage in creative law-making. But we do recognize one important exception to this general rule. Federal statutes that establish an offense were intended to guide adjudications in Article III or other courts. But these statutes were not designed for adjudications in the impeachment process. As a result, the House's and Senate's law-making power extends to issues governing procedure. And those bodies can use this power to modify procedure (widely understood) to accommodate a House prosecution and a Senate forum. But this power would not extend to the substantive law defining the wrong. 

In short, the House and Senate have a limited law-making role in impeachment proceedings. And we will explain our view of the nature and limits of that role in greater detail below. Here we make two preliminary points. First, an impeachment based on speech-related wrongs poses peculiar challenges. With a conduct-based wrong, Congress can assess the acts committed. But with a speech-related wrong, as a general matter, Congress must make a judgment about what consequences or results the speaker intended with his speech. In this regard, speech-related wrongs bear similarities to inchoate crimes in criminal proceedings. In such situations, we look to evidence as to what the defendant said or wrote, in order to determine whether the speaker had the requisite intent to violate the law and to bring about proscribed consequences. 

The 1799 Blount proceedings, our nation's first impeachment, was based on such a speech-related wrong. Moreover, the primary evidence against Blount was a letter, purportedly signed by Blount. In this letter, Blount sought to promote a plan to have Britain seize Spanish territory in the New World. Blount's motive seems to have been in connection with adventure and commercial gain. Blount did not hold himself out as a representative of the United States government. As a result, Logan Act principles and policies were not at issue. The House ultimately adopted five articles of impeachment against Blount. Each article of impeachment made allegations that Blount's conduct was criminal, or involved conspiracies, or violated the laws of the United States. In Blount, a case charging a speech-related wrong, the House did not vote to impeach absent allegations that the defendant violated established law. (We do not opine whether the House was correct in alleging that Blount violated any actual laws of the United States.)

We raise a second point concerning the House's and Senate's law-making roles in impeachment proceedings. The Constitution assigned the House the power of impeachment and assigned the Senate the power to try impeachments. The Constitution did not assign these roles to each body in order to create a law-making role in either one for use during such proceedings. Each house was assigned its role in the impeachment process for other reasons—unrelated to "legislation" or law-making broadly understood. For example, in Federalist No. 65, Hamilton considered potential venues other than the Senate to conduct an impeachment trial. Ultimately, however, Hamilton defended the Constitution's choice of the Senate. Hamilton rooted his argument in a variety of motives and purposes. He relied on history and precedents drawn from Britain and the states, costs or economy, as well as pragmatism. In explaining why the Senate was assigned the role of trying impeachments, Hamilton-Publius stated: 

"Where else than in the Senate could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel CONFIDENCE ENOUGH IN ITS OWN SITUATION, to preserve, unawed and uninfluenced, the necessary impartiality between an INDIVIDUAL accused, and the REPRESENTATIVES OF THE PEOPLE, HIS ACCUSERS?" 

Hamilton expressed a bona fide concern: the regular courts, including the Supreme Court, might be poorly positioned to try an impeachment. They could lack the "confidence" to remove elected officials or great officers of state. Moreover, they might be unable to effectuate the removal of those officeholders. We see no evidence that the House and Senate were assigned their roles in the impeachment process in order to facilitate their creating novel legal theories on which to impeach officeholders. These structural arguments further illustrate why the House should rely on established legal standards. 

III. The Hamilton-Story Duty-Centric Model of Impeachment.

The traditional view is that a President or other officeholder, in certain circumstances, may be impeached for a public offense: an offense that is not grounded in established law. But in the impeachment process, public offenses should be treated differently from private offenses. Here, we sketch out our position in greater detail regarding how to distinguish public offenses from private offenses. Our position begins with Alexander Hamilton's famous discussion of impeachment in Federalist No. 65. Publius explained:

A well-constituted court for the trial of impeachments is an object not more to be desired than difficult to be obtained in a government wholly elective. The subjects of its jurisdiction are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself. (emphasis added).

Joseph Story described the impeachment process in a similar fashion. In his celebrated Commentaries on the Constitution, Story wrote that "[t]he jurisdiction [in impeachment] is to be exercised over offenses which are committed by public men in violation of their public trust and duties.

Hamilton and Story did not suggest that every wrong by a "public m[a]n" falls within the "jurisdiction" of the impeachment power. Rather, the phrase "high Crimes and Misdemeanors" in the Impeachment Clause has some outer bounds. Contrary to what Gerry Ford suggested, the House does not have carte blanche to define any wrong as a "high Crime[] and Misdemeanor[]." Rather, according to Hamilton, this phrase embraces those wrongs by officeholders that "violat[e] . . . some public trust." Or, as Story put it, wrongs that violate "their . . . duties." The Hamilton-Story view is the canonical restatement of impeachment. Some early commentators expressly contended that the whole scope of "high Crimes and Misdemeanors" was limited to offenses based on the violation of duties arising in connection with the defendant's public station, office, or position. For example, this duty-centric view was adopted by William Rawle, who wrote one of the most prominent antebellum commentaries on the Constitution. In 1825, Rawle, the former U.S. District Attorney for Pennsylvania wrote "In general those offences which may be committed equally by a private person as a public officer, are not the subjects of impeachment. Murder, burglary, robbery, and indeed all offences not immediately connected with office, except the two expressly mentioned [ie, bribery and treason], are left to the ordinary course of judicial proceeding …."

Nevertheless, the modern consensus view is that Hamilton's list was under-inclusive. That is, the bounds of "high Crimes and Misdemeanors" are broader than the Hamilton-Story duty-centric view. Here, we assume the modern consensus view is correct: there are other "high Crimes and Misdemeanors" that do not "violate[e] . . . some public trust" or an officeholder's "duties" that can still support an article of impeachment. The impeachment inquiry thus raises two challenging interpretive issues. First, what type of public conduct violates "some public trust"? Second, what type of private conduct—that is, conduct that does not violate "some public trust"—is still sufficient to support an impeachment?

The House may argue that any wrong by the President violates the "public trust." In other words, a violation of the "public trust" is whatever a House majority says it is. Or, the House may argue that any legal violation, even if unconnected to the duties of the presidency, violates the "public trust." Hamilton referred to a "violation of some public trust." The modifier "some" suggests that the term "public trust" has some particularized limits. What are those limits? Likewise, Story wrote that impeachment extends to a "violation [of] duties" by public men. Not everything is a duty. What are those duties? 

Let's consider a hypothetical. During a holiday, President Burr stays at Burr Tower, his private residence in New York City. After he finishes the day's public business, he walks onto Fifth Avenue carrying his privately-owned pistol, and shoots a random person with the intent to kill. Under the modern consensus view, Burr could be impeached and removed from office for murder. Yet, this offense does not squarely fit within the Hamilton-Story duty-centric understanding of an impeachable offense. Does this egregious offense amount to an "abuse or violation of some public trust"? Is there a violation of a duty flowing from his holding the presidency? You may be inclined to say "Yes!" But the term "public trust," according to some scholars, reflects the law of fiduciary duty law. Generally, a person can breach that trust through the abuse of his office—or, to use the language from Trump's first impeachment, an "abuse of power." We think an officeholder abuses "some public trust" if he uses government information, property, personnel, or powers that are entrusted to him by virtue of his public station, office, or position. But in our hypothetical, Burr did not use the powers of his office to commit murder. He did not use any government resources. He was staying in his private residence, and used a privately-owned weapon. Burr's misconduct does not relate to his specific duties as President. Rather, Burr breached the duties that he shared in common with all other citizens. On these facts, he did not violate "some public trust" or the specific "duties" connected to his position. Burr's murdering a person, in this way, would be a private offense, and not a public offense. In this hypothetical, an impeachment based on murder would not fit the Hamilton-Story duty-centric model. 

Now, let's change the hypothetical. Again, President Burr stays at Burr Tower in New York City during a holiday. After he finishes the day's public business, he walks onto Fifth Avenue. There, he tells his gathered constituents that the mayoral election was rigged. Burr encourages his supporters to "peacefully and patriotically" walk down Broadway to City Hall to protest the Mayor's "corrupt" administration. His supporters, and others who did not hear the speech, make the four-mile walk. Other people were already waiting at City Hall before Burr even made his speech. Then, a group of people violently break into city hall and kill the Mayor. In this hypothetical, Did Burr use the powers of his office to commit his offense? Or, is this offense closer to the murder on Fifth Avenue? We do not think the identity of the victim—a random person or the mayor—changes the analysis. Nor do we think the motive for the killing changes the analysis—for example, if Burr gave the speech for a partisan end. His speech did not violate any duty that flows from his office. He did not run afoul of "some public trust." In this hypothetical, like the prior Fifth Avenue hypothetical, Burr's speech to his constituents would be, at most, a potential private offense, and not a public offense.

We recognize that critics may counter that any wrongdoing by the President, whether public or private, violates the "public trust," in light of the President's oath of office. That is, the President must always comport himself according to his oath of office. But that inquiry is circular. What exactly does the oath of office require? Does every private wrong run afoul of that oath? Adultery, where that offense is proscribed by law? Jaywalking? Or, does Congress get to define the contours of that oath? We do not think the President has to hold himself to the exacting standards as determined by a majority of the House of Representatives ex post and ad hoc. And the concept of the public trust is linked to the duties that flow from the President's office. Egregious conduct, such as murder, may still be impeachable. But if the President does not violate the duties that flow from his office, he cannot be said to violate his oath of office or the public trust. For such egregious crimes, he would commit a private offense, and not a public offense.

Other critics may make a related argument: everything the President does is a public act. We agree with Professor Daphna Renan that the President has "two bodies": a public body and a personal body. (And in some cases, he has three bodies; see pp. 7-10.) There is a distinction between the President's private acts, and those public acts performed with the powers of his office. When Hamilton speaks of "some public trust," we think he was referring to the latter concept. And Story's use of "duty" likewise refers to the duties attached to his position as President, not the generalized duties to obey the law, which he shares in common with all other citizens.

Under the modern consensus view, the President can be impeached for public and private offenses. When Congress seeks to impeach the president for violating "some public trust," the articles of impeachment can rely on something akin to the established body of fiduciary law. And that law is more flexible than substantive federal criminal law. Fiduciary law is highly fact-dependent, and its causes of action and defenses were judge-made in their inception and, largely, remain judge-made in terms of their modern development. These public offenses concern breaches of the specific duties of officeholders. For public offenses, the House and Senate have some significant latitude in characterizing the applicable law when impeaching officeholders.

A different standard should apply when a public official commits some impeachable wrong that is not a violation of the "public trust." With a private offense, the officeholder does not transgress any of the specific duties flowing from the position he holds. In those circumstances, an article of impeachment for a private offense should make reference to established law. When the President commits a private wrong in his personal "body," we think the impeachment proceedings should follow the same body of substantive law, including the elements, mens rea, and defenses, that would govern proceedings for other similarly situated citizens. We think this body of substantive law should apply, even if it is usually applied and because it is usually applied to other citizens tried in a judicial forum. Indeed, we are hard pressed to rationalize any sort of impeachment for a private "wrong" that lacks a basis in established law. And, accordingly, we cannot even characterize such a wrong as an "offense." 

Finally, some commentators may argue that Congress can make law when identifying impeachable wrongs, ex post and ad hoc. In other words, that the House and Senate can identify impeachable wrongs without regard to the President's specific duties and without regard to established law. We think the substantial defense that this position would require has yet to be made. 

IV. Private Offenses in the Johnson and Clinton Impeachments.

The Johnson impeachment helps to illustrate this dichotomy between public and private offenses. There were eleven articles lodged against Johnson. Several of them concerned Johnson's dismissal of Secretary of War Edwin Stanton. We think these purported Stanton-related offenses would fit within the Hamilton-Story duty-centric model. In other words, the wrongs alleged by the House were violations of "some public trust" or violations of "duties" connected to the President's position. Specifically, Article 1 charged Johnson was "unmindful" of his oath of office, and he failed to take care that the laws were faithfully executed, by intentionally violating the Tenure of Office Act. There was no positive law that defined the consequences of the President intentionally disregarding a statute. The Tenure of Office Act merely established a legal obligation on the President; it did not purport to define the remedy for breaching that obligation. (We leave aside the constitutionality of the statute.) More importantly, the duty imposed by the Act on the President was not one he shared with other citizens. That duty extended only to the President. Thus, the allegation in Article 1 was fiduciary in nature. And under traditional fiduciary law, it is a violation of a fiduciary's duty of loyalty  to intentionally violate the duties associated with his position. The longstanding body of established fiduciary law afforded the House some latitude to craft this fact-specific article of impeachment. 

However, Article 10 differed from Article 1. The former concerned speeches in which Johnson criticized Congress. For these speeches, Johnson was speaking to his constituents, without using government information or property. These speeches were not made pursuant to any government edict, program, or statutory duty. Johnson did not violate any duties that flowed from his office. Here, Johnson was merely communicating with his constituents. The President, an elected official and party leader, is expected to give such political speeches. And these speeches do not flow from the President's duties. We think the House erred by impeaching Johnson on these grounds. The Senate did not convict on this basis, and we think the Senate acted correctly. If the speeches did not violate "some public trust" or the specific "duties" associated with the presidency, then the impeachment process must be based on established law. As such, we think that Johnson should have been afforded the widest latitude of established free speech protections—the same protections that any other similarly situated citizen would benefit from. 

The Clinton impeachment also illustrates this dichotomy. Bill Clinton had extramarital relations. And he committed those acts on, and with government property. Moreover, he arguably used the prestige and power of his office to form that relationship. But we do not think that conduct, assuming it was consensual, violated "some public trust" or the specific "duties" associated with the presidency, as the law stood at that time. It was—as we were reminded for years—a "personal" act that did not reflect on Clinton's office. The President has a right to have a private life, even while living in the White House. When he takes the oath of office, he does not take an oath to be scrupulously moral as a majority of a subsequently elected House may determine morality. Likewise, where a President is charged with perjury, he should be burdened with and benefit from the same substantive law of perjury—that is, its elements, mens rea, and defenses—that any other defendant charged with perjury would face. The fact that a President is impeached and tried in a different forum from other citizens is not a reason to vary the substantive law of perjury. In an impeachment proceeding, the House and Senate should not be empowered to make new law, that is, perjury-lite law, for a single occasion and a single defendant.

This history brings us forward to President Trump's first impeachment. In 2019, Trump was impeached based on a telephone call he made to the President of the Ukraine. That call was made pursuant to Trump's official duties as President. He was discussing foreign relations, a core power of the presidency. The call was made using government property and information. Other government officers listened to the call. In short, that conduct implicated the "public trust" and Trump's "duties" as President. To the extent there was an impeachable offense, it can be fairly characterized as a public, and not private offense. (We argued there was no merit to the charge, because the conduct did amount to impeachable bribery.) 

V. The Draft and Final Article of Impeachment: An Analysis. 

Now, let's turn to the text of the sole article of impeachment adopted in January 2020, titled "Incitement of Insurrection." The House did not allege that Trump committed "Bribery" or "Treason." (Though, some commentators urged the House to charge Trump with the latter offense.) Therefore, it would seem to follow that "Incitement of Insurrection" was intended to be a "high Crime[] and Misdemeanor[]." Is "incitement" an established crime? Of course. 18 U.S.C. § 2101 makes it a crime to "incite a riot." Likewise, 18 U.S.C. § 2283 makes it a crime to "incite . . . any rebellion or insurrection against the authority of the United States." There are other potentially relevant statutes. Yet, the article of impeachment does not cite these statutes, or any others, to define the elements of "Incitement of Insurrection." Rather, as best as we can tell, the House fashioned a novel standard out of whole cloth. Indeed, the House amended its early draft article of impeachment to eliminate any reference to established law about incitement.

On January 8, Rep. David Cicilline of Rhode Island circulated a draft version of the article. It included this passage:

On January 6, 2021, pursuant to the Twelfth Amendment of the United States Constitution, the Vice President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. Shortly before the Joint Session commenced, President Trump addressed a crowd of his political supporters nearby. There, he reiterated false claims that "we won this election, and we won it by a landslide'. He also willfully made statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol. Incited by President Trump, a mob unlawfully breached the Capitol, injured law enforcement personnel, menaced Members of Congress and the Vice President, interfered with the Joint Session's solemn constitutional duty to certify the election results, and engaged in violent, deadly, destructive, and seditious acts.

This passage includes five relevant components. First, the passage focuses solely on Trump's conduct on January 6, "[s]hortly before the joint session." The draft article did not look at Trump's actions in the months and weeks leading up to January 6. Why was this discussion so time-limited? Because second, the drafters invoked an established legal standard that required imminence. Here, the drafters adopted something close to the standard announced in Brandenburg v. Ohio: that Trump "willfully made statements that encouraged—and foreseeably resulted in—imminent lawless action at the Capitol." This language does not track Brandenburg precisely, but it is fairly close. Brandenburg held that the government can punish speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." The draft article focused on conduct from January 6 because that date would be the relevant time period for Brandenburg's "imminence" analysis. Third, by invoking Brandenburg, the draft article afforded President Trump an important defense. He could argue that his statements did not "encourage . . . imminent lawless action." Fourth, this established law provides the burdens of proof the managers must meet. And, accordingly, the Senators can determine whether the managers met their burden of proof. Fifth, and most importantly, the choice to reference established law supports the legitimacy of the charge. Here, the drafters used established law, which was developed by the courts for future cases unknown. The drafters did not adopt a novel legal standard developed uniquely for the specific defendant and the specific case before Congress. This standard was tethered to precedent and established law. Such an approach was not subjected to manipulation by the President's opponents. 

In our January 8 blog post, we recognized this potential defense based on a lack of imminence. At the time, we did not know what precise language the House would adopt, but we had seen Rep. Cicilline's draft article. If that draft had been adopted, the abstract legal issue of whether the First Amendment applies to the impeachment process really would not have mattered. Had the draft article been adopted with a standard akin to the Brandenburg test, the House would have effectively imported that First Amendment standard into the impeachment process. (Indeed, the House managers may decide, at trial or in post-trial briefing, to import the First Amendment standards into the impeachment process. This post does not address the recently-filed House brief.) Again, the House's draft article made use of established First Amendment law. 

However, the language from the draft article would change. The text of the adopted article of impeachment provides: 

On January 6, 2021, pursuant to the 12th Amendment to the Constitution of the United States, the Vice President of the United States, the House of Representatives, and the Senate met at the United States Capitol for a Joint Session of Congress to count the votes of the Electoral College. In the months preceding the Joint Session, President Trump repeatedly issued false statements asserting that the Presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by State or Federal officials. Shortly before the Joint Session commenced, President Trump, addressed a crowd at the Ellipse in Washington, DC. There, he reiterated false claims that "we won this election, and we won it by a landslide". He also willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol, such as: "if you don't fight like hell you're not going to have a country anymore". Thus incited by President Trump, members of the crowd he had addressed, in an attempt to, among other objectives, interfere with the Joint Session's solemn constitutional duty to certify the results of the 2020 Presidential election, unlawfully breached and vandalized the Capitol, injured and killed law enforcement personnel, menaced Members of Congress, the Vice President, and Congressional personnel, and engaged in other violent, deadly, destructive, and seditious acts.

The five particularly significant components from the draft article were altered. First, the passage was no longer limited to the events of January 6. Rather, the article referred to "false statements" made in the "months preceding the Joint Session." This first change ineluctably led to the second change: the reference to "imminent" lawless action was removed. The adopted article of impeachment no longer tracked Brandenburg. Indeed, it appears the House created a novel standard out of whole cloth. The House's novel standard is that Trump "willfully made statements that, in context, encouraged—and foreseeably resulted in—lawless action at the Capitol." The phrase "imminent lawless action" was shortened to just "lawless action." There was no longer any temporal requirement. This statement is not the Brandenburg standard; it is not even comparable to the Brandenburg standard. As far as we know, the proponents of this standard have not put forward any arguments or precedents explaining establishing why the House's legal test should be used.

Third, by eliminating any reference to established law, the House eliminated an important defense that Trump could raise. Even if Trump could show that there was no imminence, he could still be found guilty under the announced legal standard. On its face, the House's revised test made it easier to convict Trump. The House accomplished this goal by eliminating any reference to established law. Fourth, because this standard is novel, the managers will not be able to rely on caselaw that explains how they must meet their burden. Likewise Senators will lack judicial guidance to determine whether the managers have met that burden. Fifth, the adopted article could no longer rely on the legitimacy afforded through an established legal standard. The House adopted a novel standard that was developed uniquely for the present facts, untethered to precedent and established law. Such an approach always risks manipulation by those supporting impeachment. The President's attorneys should raise this argument.

We see five normative advantages to the first draft, which tracked the Brandenburg standard. And these advantages inure to the benefit of Trump, the House, the Senate, and the entire process First, under the Brandenburg standard, Trump, and all officeholders, are on fair notice of the boundaries of what conduct could give rise to impeachment. Had Trump, or other similarly situated persons, asked counsel for advice, they would have been able to explain where the courts have drawn this well-known line. In the criminal context, a defendant will sometimes be subjected to a new criminal statute that had never been adjudicated. Cases of first impression sometimes present difficult interpretive questions. But that novelty does not render the prosecution unfair or unconstitutional. However, with Trump, the offense was crafted after his conduct. In effect, the House is defining  impeachable private "offenses" after the fact, without reference to established law. If this view is correct, then there are no meaningful limits on the House's impeachment power. In effect, the Constitution's "high Crimes and Misdemeanors" language amounts to what any House majority and 2/3 of the Senate choose to act upon. To put it another way, the sole article of impeachment against President Trump reflects an ex post and ad hoc creation—it is a wholly novel private "wrong." We refer to this conduct as a private "wrong," rather than a private "offense," because the charge does not appear to be founded on any established law. 

Second, there is a related normative advantage from the perspective of members of Congress. Had the House adopted the Brandenburg standard, members of both houses could determine whether Trump's speech is protected under applicable law. 

Third, with the draft article, the House Managers would have had a basis in established law to facilitate meeting their burden of proof. They would have to plead all of the elements of incitement in light of Brandenburg, as they would in a criminal trial. And, the President's counsel could assert that the managers failed to meet that burden, and could raise defenses available under established law. 

Fourth, after the trial concluded, Senators could assess the Manager's arguments, the President's defenses, in light of the established law. By rejecting Brandenburg, the House and Senate members are essentially flying blind. 

Fifth, by adopting an established body of law, the House managers would have immunized themselves against charges of partisanship, politicization, and gamesmanship. The House was simply following the law that everyone had long understood—including the House's initial draftspersons. No new precedent would be set. Rather, the Senate would be following settled practice. Of course, the House rejected the standard announced by the Supreme Court. And the decision to create a novel standard led to an unintended consequence: the President's defenders now can argue that the wrong legal standard was selected. Thus, even if the facts alleged are true, the President should not be convicted. The President's defenders may choose to acquit so as not to establish a precedent that unduly burdens the free speech rights of political officeholders and future presidents. And Senators can charge that the House engaged in unfair partisan gamesmanship: they invented a novel standard to convict the President. This argument may become more attractive to some senators because Trump is out-of-office. Even if it is believed that Trump was a wrongdoer, he does not pose a current threat. In this case, the risk of a bad precedent may weigh more heavily with the Senators.

Conclusion.

Given the facts we know today, Trump's January 6 speech at the Ellipse is better characterized as a private offense. On January 6, President Trump spoke to his constituents at a rally held at the White House Ellipse. But the rally was not actually on White House property. Despite its name, the Ellipse is outside White House grounds. The rally was organized by private parties. Trump was not speaking there pursuant to any duty of his office. This speech was a political speech, much like speeches he gave at many of his other rallies. Here, we think Trump was speaking with his "personal" body. 

Based on our reading of Hamilton and Story, Trump's speech at the Ellipse would not be a breach of "some public trust" or the specific "duties" that flow from the presidency. Trump's conduct could still give rise to an article of impeachment. But in our view, that impeachment, for a private offense, should be premised on established law. And, that law is the Brandenburg standard, which had influenced the House's initial draft. The House's draft article of impeachment afforded Trump the opportunity to raise Brandenburg as a defense. But the adopted draft eliminated that reference to established law. With respect to Trump's speech delivered at the Ellipse, the article for incitement of insurrection runs afoul of our position for what constitutes a "high Crime and Misdemeanor." 

We take no position on whether Trump's purported conduct beyond his January 6 speech at the Ellipse may amount to a public or private offense.

[Seth Barrett Tillman is a Lecturer at Maynooth University Department of Law, Ireland (Roinn Dlí Ollscoil Mhá Nuad).]

NEXT: My New USA Today op ed on Biden's Impressively Far-Reaching Pro-Immigration Agenda

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  1. “We put these views out to start a conversation, not to authoritatively settle one.”

    Translation: “We put these views out to help cover Donald Trump’s ass, and the Constitution be damned.”

    Everything Josh Blackman writes about Donald Trump is a flawless specimen of result-determined legal mumbo-jumbo. Who can take this man seriously?

    1. Translation: you seek to settle every conversation, shut them down, and start a ruckus.

      You apparently take Josh Blackman seriously enough to try to shut him up.

      1. To the contrary, I welcome — even relish — Prof. Blackman’s writings, much as I salute the Volokh Conspiracy for bringing unvarnished conservative thinking to a (slightly) broader audience.

        This is the future of right-wing legal academia.

        I am content.

        1. So was Robespierre ….

      2. How is Alan trying to shut him up? Is he complaining to Reason or Eugene or his employer
        or the bar and threatening some kind of tangible consequences unless he stops writing? Because it seems like he’s just making fun of him for being a partisan hack and not a serious scholar in the comments section of his blog post.

        1. Law,
          Yeah, I didn’t really understand Á àß’s point either. Possible that he was joking around???

          1. Some people treat harsh criticism as an attempt to silence. Sometimes I wonder if they’re arguing that it’s “silencing” because they realize it’s so on point that the criticism recipient would have no choice but to STFU if they read it.

            “How dare you silence Josh Blackman with that criticism! You know he’d be so embarrassed he’d never talk again if he read that!”

    2. Alan, you can’t honestly think that ANY of this charade is what the founders intended, do you?

      Can you imagine what Obama would have done had he lost the 2012 election under the same sort of questionable circumstances as 2020? Obama *would have* sent in the Army…

      1. Oh, come on, no, he wouldn’t have. The odds of that ending well for him were terrible, and he was smart enough to know that, if he even gave the idea any consideration.

        Trade a comfortable life as a nearly sainted ex-President, for the perilous and often short life of a dictator supported by troops who don’t really like him? He’s not that stupid.

        The stability of our democracy is declining, and fast, but it hasn’t gotten to the point where you’d expect a military fight over change of Presidents yet, and certainly wasn’t there in 2012.

        1. Ahead of Jan 6, there were people suggesting that Trump would refuse to leave office and the military would support him. Nope, wasn’t going to happen, and it didn’t.

          And we are a very long ways away yet from the military intervening on a change of administration barring an actual insurrection by supporters of the loser.

      2. There were no questionable circumstances. It was the cleanest presidential election in history. (Well, I guess Washington’s unanimous election was cleanest. Other than that.)

        1. It was the cleanest presidential election in history.

          Nathan Poe, is that you?

          1. Under the most intense scrutiny in history, with highly motivated people desperate to find fraud, they could find none.

            1. But they’ll never quit whimpering about it.

              Except for the ones disciplined by courts and smacked by civil claims. They’ll likely shut up.

  2. Trump’s January 6 speech at the Ellipse is better characterized as a private offense

    Trying to steal an election is a public offense.

    1. So impeach Biden then.

      1. I know the American Volk think that getting the most votes from a diverse coalition of people is stealing from them, but it’s not actually not.

        1. “Diverse coalition of people” including the dead…

          There were people born in the 1840s who voted — you really want to justify this?

          1. There were no people born in the 1840s who voted.

    2. Because giving a speech is “trying to steal an election” ?

      Oooh boy.

      1. Disingenuous AL strikes again. Pretends to know nothing about the last 3 months other than whatever strawmen he can come up with, ignoring actions such as trying to coerce the Georgia SoS to “find” votes and call it a mistake, or whatever he needs to call it, as long as 11,780 voters are ‘found.’

        Imagine if you had a reputation you actually cared about.

        1. “ignoring actions such as trying to coerce the Georgia SoS ”
          Which wasn’t actually brought up in the impeachment…

          If you think giving a speech is trying to “steal an election”, I don’t know what to tell you, except that it’s crazy talk.

          1. The house brief actually goes thoroughly into Trump’s actions regarding the election before the speech. That context is key to understanding the speech and what happened after. It’s also key to his actions during and after the insurrection where he kept up the lie.

            1. So, the so called “lie” is trying to “steal” an election. Is that your view?

              1. Well, if the lie is trying to get officials to reject electoral certifications, or disrupt the certification process, then yes.

                Let’s be real here: what do you want think would have happened if these people got to the Representatives and Senators and VP? Many of them would be dead (and worse). It would probably be live steamed. It would have been really fucked up.

                And then once congress was in tatters with some trump loyalists left? What would have happened?

                1. So, in your view, if you present an argument to election officials why a certification shouldn’t be done, that is “stealing” an election. Really. That’s your view?

                  “what do you want think would have happened if these people got to the Representatives and Senators and VP”

                  Probably the same thing that happened when the crazed protestors climbed over the barriers in front of the Capitol and got to the Senators in 2018 during the Kavinaugh hearings…

                  1. You’re in denial about what happened on 1/6. When it came to the Kav hearings: No one died. No one was hiding in their offices or secured locations. They didn’t force the debate to end for hours. There weren’t pipe bombs and guys with flex cuffs looking for hostages. No one was in Mitch’s office.

                    And yeah. If you’re attempting to threaten an elections official with consequences for not finding the correct amount of votes, you are trying to steal an election.

                    1. “When it came to the Kav hearings: No one died.”

                      Luckily. They actually had appropriate security then. Imagine if they didn’t. Protestors were already swarming over the barricades in 2018. If they had the security in 2018 that they did in 2021, people would’ve been shot.

                      Here are the tweets from 2018. ““We were planning to shut down the Capitol Building but the authorities were so scared of this #WomensWave that they shut it down for us,” read a tweet from one activist group:”

                      Sound familiar?

                    2. Here’s more from 2018…

                      “USCP rpt they arrested 150 ppl after they stormed the East Front Steps of Capitol ahead of Kavanaugh vote. 1 woman arrested in Senate chamber prior to vote. 13 ppl arrested in Senate chamber during Kavanaugh vote”

                      And more..

                      “Just overheard Kavanaugh protestors yell: Mitch McConnell’s house is two blocks from here. Let’s go!”

                      And more

                      “You are not safe,” wrote an activist group in taking responsibility for the harassment. “We will find you. We will expose you. We will take from you the peace you have taken from so many others.””

                    3. I’ll add on one last thing about 1/6 and your scaremongering. This is what I saw from the videos.

                      I saw the protestors entering the capitol through an OPEN DOOR. I saw videos of the Capitol Police taking SELFIES with the protestors, and the capitol police just sitting there in the hallway as the protestors go by. You’ve got a lot of scaremongering about “what would’ve happened if the protestors got to the VP and Congressmen”…

                      Nothing. The Congressmen would’ve been yelled at. If the protestors seriously wanted to hurt people and take people hostage, they would’ve. They would’ve forced their way into the closed offices. They may even have brought and used guns. But they didn’t do that. The protestors entered the Capitol…and they they left, of their own free will.

            2. I’ll add on one other thing, and it’s a big one.

              If you have to make up the supposed crime post-hoc to try to impeach someone, and can’t actually fit it into any of the many, many actual violations of the criminal code….you should really reconsider what you’re doing.

              Both impeachments of Trump fit this categorization. They actual charges needed to be made post-hoc, because they don’t actually fit any real criminal charges.

              It’s impeachment so it’s not exactly a bill of attainder. But what’s going on looks and acts just like it.

          2. Which wasn’t actually brought up in the impeachment…

            Um, it is, you dishonest hack.

            “Those prior efforts included a phone call on January 2, 2021, during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to ‘‘find’’ enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.”

            1. This is all sorts of backwards craziness.

              The evidence Trump was inciting a riot is because he had a private conversation with the Georgia Secretary of State regarding the vote count, which was then leaked, and because of a private phone call, THAT in turn incited a riot? You’re arguing a leaked private phone call incited a riot?

              Is that the crazy logic going on? You’ve got so many conspiracy theories and post-hoc charges going on that you can’t keep them straight.

              1. Are you secretly a cocaine-addicted hamster? Is that why you can’t respond to arguments without vomiting up nonsensical word-salad strawmen?

                You said the call wasn’t brought up. It absolutely was, and you’ve been (again) proven to be a liar. Instead of owning up to your own bullshit, you go off on a rant about how it was a private phone call, as though your deliberate mischaracterization and minimization of the facts is somehow going to prevent people from seeing the disingenuous lies you spit out.

                Your parents utterly failed you.

              2. You’re arguing a leaked private phone call incited a riot?

                No. Is English your native language?

            2. “during which President Trump urged the secretary of state of Georgia, Brad Raffensperger, to ‘‘find’’ enough votes to overturn the Georgia Presidential election results and threatened Secretary Raffensperger if he failed to do so.””

              It’s a bad sign when you can prove a charge false by just looking at the prosecution’s own evidence. Trump never told Raffensperger to find anything. “I Just Want to Find 11,780 Votes.”

              Trump said a lot of stupid things in that call, but he never said what you’re claiming he said. He thought there was fraud, and that given access to the records, HE could prove it.

              Democrats turned that into a demand that Raffensperger manufacture votes for Trump. And think that if they repeat the lie enough, people will believe it instead of the actual transcript.

              1. Remember how you claimed that Trump didn’t say that he wanted the vote recalculated, except that the exact word you said wasn’t in there was in there?

        2. So Jason believes that an aggrieved person lacks the ability to complain to a Secretary of State.

          Does Jason realize the precedent that he’s establishing?!?

          1. As usual your characterization is completely wrong.

      2. This is pathetic. Even for you. Okay, not even for you; it’s par for the course for you. Trump could pull the trigger on a gun he was holding and shoot someone, and you’d say, “All he did was move his finger. How can you punish him for that?”

        He could throw Ivanka down a flight of stairs, and you’d say, “Because playing with one’s kids is a crime?”

        1. Yup. That’s A.L.

        2. You’re mixing and matching your crimes and supposed actions, and because of your TDS, you just can’t see straight.

          Trump’s words and actions here are nothing that weren’t done by the Democrats at various points for the last 4 years. We’ve suffered through protestors slamming on the doors of the SCOTUS trying to stop nominations, while throwing objects at SCOTUS judges cars. We’ve suffered through masses of violent language from Democratic leadership that has resulted in Republican Congressmen being shot, and hundreds of deaths during protests. We’ve suffered through the entire “Russia” lie.

          But you see a single protest on the other side that goes askew, and suddenly it’s “impeachment worthy” and “criminal behavior” and relatively modest language is now “incitement”. It’s nuts.

          1. “hundreds of deaths during protests.“

            Citation needed

            1. hundreds of deaths during protests

              If you go back to Ferguson and add up all the carnage we’ve endured over what’s now the 7th year of the insurrection, you’d likely be surprised.

              Let’s just take police officers — a few murdered here, a few there and the BLM bodycount starts to add up. I’d be surprised if it was less than 40 at this point.

        3. David, you’re comparing dialing a cellphone with firing a gun on the basis of both being done with a finger.

          One can also make an obscene gesture with a finger — it may be in poor taste but not homicidal. You are bright enough to understand the difference, aren’t you?

      3. Lying that you won the election with the intent of convincing people to take action in order to have you declared the winner is stealing an election.

        1. We’d be throwing a lot of attorneys in prison under Josh’s standard…

      4. Libs are just mad that his speech was THAT good. Haters gonna hate.

  3. We see five normative advantages to the first draft, which tracked the Brandenburg standard. And these advantages inure to the benefit of Trump, the House, the Senate, and the entire process.

    The overarching disadvantage of the Brandenburg standard is its high bar permits too many public offenses such as lying to stealing an election.

    1. Indeed. But also, does anyone want to argue that if a *President* made the same exact speech Brandenburg made that he couldn’t or shouldn’t be impeached? WTF?

      1. Presidents *have* — FDR on 12-8-1941 comes to mind.

        1. Tell me that speech would have cleared Brandenberg if made by anyone other than the POTUS…

    2. Josh, are you *really* arguing that “lying” is grounds for impeachment?

      1. It was for Bill Clinton.

    3. The advantage of the Brandenburg standard is that its high bar spares you the need to prosecute dozens of Democrats for worse conduct.

    4. The charges are not about lying. No one is impeaching Trump for lying. They are pointing to his statements and saying “Because those were lies, ergo… incitement!” And then impeaching for incitement only.

      If lying is/was the paramount issue… or even a major one… then why not an additional article for it? That article could have brought up something other than Brandenburg as its relevant case law which gave the House managers a different bar to meet.

      So it doesn’t follow that using Brandenburg to defend a claim of insurrection means you can’t make a claim of lying/fraud/stealing an election.

      But the House didn’t do that. I’m curios why that is. That isn’t a comment saying “OOohh… that means they know they cheated!” I am just genuinely curious why they didn’t given that a) it happened well before the “insurrection” according to their claims and b) it seems like a pretty big freakin’ deal and something that should have been addressed.

      1. I suspect the House didn’t charge Trump with trying to steal an election (of which the lies are one part) because they felt the politics required the charge to be directly related to the riot. So instead, the lies intended to steal the election are part of the evidence of incitement. And, the Brandenburg standard says that evidence is not sufficient.

        1. I agree the politics of the day would require an impeachment re: the riot. However, that didn’t preclude them from impeaching over stealing an election or lying… so why not do that, too? It didn’t have to be a one or the other type of deal.

          1. Perhaps they felt it would be used by the GOP as a distraction.

  4. Re: High Crimes and Misdemeanors

    Look at it structurally, perhaps. The House is the complainant. The act must have injured its interests — not necessarily its interests within the institution, but the interests of the institution within which it legislates, becoming the legal person at the heart of the government. And yes, breaching the sovereign’s peace in any degree by what the post calls private wrongs does harm the national legislature, but Congress arguably gains cognizance of the matter because the crime was committed by the head of the executive, damaging the interests of the government.

    The High Court of impeachment is the law in free-fall. Although brazenly political and not conducted according to the public law, the forms of the common law persist. There’s an argument that Star Chamber saved the British Constitution, because no ordinary court could have brought the misbehaving aristocrats to justice, and although it did so under capricious prerogative, it was also under the common law. Disparate times call for disparate measures.

    Mr. D.

  5. If law professors expended 1/10th the effort they expend on impeachment scholarship (which is totally meaningless anyway, as the political branches will do whatever is politically convenient) representing indigent defendants, we keep get some innocent people out of prison.

    1. Given the caliber of their work, I don’t think we do.

    2. Too many law professors, even liberal ones, are too focused on a lot of the abstract threats to liberty from the government org chart instead of the concrete day-to-day deprivations that routinely occur because of real people taking real actions.

    3. This gives the political branches cover to do what they want. Weak cover, but so many voters want to be convinced in the first place, it doesn’t take much to keep them unaccountable.

      1. Voters don’t care about cover from law professors Sarc. Look at Mitch McConnell’s entire career.

        1. Jeez, that hit home.

          Politicians seem to still seek cover, but that might be a legacy of a bygone age.

          Good point; or at least something I gotta think about some.

  6. 1. However, with Trump, the offense was crafted after his conduct. In effect, the House is defining impeachable private “offenses” after the fact, without reference to established law.

    Yup.

    2. ” And Senators can charge that the House engaged in unfair partisan gamesmanship: they invented a novel standard to convict the President. ”

    Yup.

    3. Under any reasonable standard of equality and logic with this new post-hoc standard, previous inflammatory speeches and content given by Democratic politicians would result in their immediate impeachment or being expelled from Congress. In 2017, Steve Scalise was shot by a Democratic activist. The inflammatory speeches given by Democratic Politicians led to this shooting, under the same logic. Yet, not a single word or thought is given to expelling those Democrats who used violent imagery and speeches, which resulted in attempted assassination of Republican leaders.

    1. “…not a single word or thought is given to expelling those Democrats who used violent imagery and speeches, which resulted in attempted assassination of Republican leaders.”

      Yet.

      I don’t think the Democratics (aka Jacobins) realize the extent to which they are playing with fire — nor remember what happened to Robespierre…

      These modern-day Jacobins — and that’s what they are — are establishing precedents that a future MAGA majority will use against them. I’m reminded of the CP members whose fate changed after WWII when the USSR went from friend to foe seemingly overnight.

      If “be peaceful and patriotic” is incitement, I can see a wholesale purge of Team Nobama….

    2. In 2017, Steve Scalise was shot by a Democratic activist.

      No, he wasn’t. He was shot by a guy who once may have volunteered for Bernie Sanders’ campaign in Iowa.

      The inflammatory speeches given by Democratic Politicians led to this shooting,

      Which speeches? Which politicians?

  7. Jumping way too far way too fast.
    “The Constitution enumerates three categories of offenses that warrant impeachment: “Treason,” “Bribery” and “other high Crimes and Misdemeanors.”” is an incorrect statement. The constitution says: “The House of Representatives shall choose their Speaker and other Officers; and shall have the sole Power of Impeachment.”
    Simple extraction is that the house can impeach for anything they want. It is their sole power without limitation.
    Then:
    “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.” IF is is “Treason, Bribery, or other high Crimes and Misdemeanors” then they are removed from office. If it’s just for shits and grins then the punishment can be anything less than “shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor.”
    Stop with the over thinking.

    1. This again.

      “Sole” power of impeachment means that nobody else can impeach. “Sole” isn’t a synonym for “plenary”. It means exclusive.

      Now, the impeachment power is normally unreviewable, except in a sense by the Senate, so under normal circumstances if the House impeaches somebody who is subject to it, no court is going to say, “No, a bad comb over isn’t impeachable!”

      But if the House decided that they wanted to rule out Bezos running for President, and impeached him though he has never held public office, you may be sure that the courts would find THAT reviewable. At least once there was a conviction, and hence some harm to review.

      1. It doesn’t matter whether the House has plenary power or not. Since they have sole power to impeach they can impeach for anything more than half of them agree on.

        The check on that is it takes 2/3 of the Senate to convict.

        The outcome of an Impeachment and a Conviction by the Senate is a classic non justiciable issue. No court will or can touch it.

        At some point you have no choice but to trust the institutions we have, not withstanding the opinions of some law professors.

  8. Even granting the dubious premise that your private/public offense distinction is a valuable heuristic—in what possible universe does a political official inciting a riot aimed a disrupting the proper administration of government functions not fall on the public side?

    1. 1) The authors make a reasonable argument that “political official” is irrelevant in characterizing the nature of the offense.
      2) As a piece of writing the authors have done a poor job (students beware). The piece his high and needlessly repetitious; it is replete with grammatical errors and other imperfection of English expression. The should take the commonly proffered advice of EV that nothing ever written it is rewritten and rewritten. JB is destined to remain in a Tier 5 law school.
      3) A large fraction of the commentary displays why so many on the left strongly prefer an impeachment trial to prosecution: they believe the bar for conviction is far too high in both a legal and evidentiary sense.

      1. Trump’s actions are clearly impeachable; it’s a closer question whether they were criminal.

        Also, the procedure of a trial – drawn out, potential for a circus – is not conducive to the accountability being sought.

      2. If you think his writing is bad, you should see his public speaking.

    2. They’re defining public offense way too narrowly. Which I think is the huge flaw in the argument. Josh and Seth are actually relying on geography in part to define them. The main part, fiduciary duty, is also very narrow. While Cardozo broadly proclaimed that adhering to a fiduciary duty is a “punctilio of an honor most sensitive” that concept is grounded in specific business relationships, not something more general and abstract like political leadership. It’s a terrible concept to apply to politics.

      It’s sort of like how the state bars know for sure that IOLTA issues are professional conduct violations but they’re much more wishy-washy with every other rule.

      1. I’d like to know how IOLTA is Constitutional, post _Citizens United_….

        1. How the hell would a ruling that corporations can make independent expenditures to support or oppose candidates have any effect on a law allowing the state to keep interest earned on attorney trust accounts?

  9. Brandenburg v. Ohio incorporates the clear and present danger test of Dennis v. United States. In Dennis Judge Learned Hand posited a formula for applying the clear and present danger test:. The gravity of the harm sought to be prevented, discounted by the improbability that the harm will actually occur.

    Here the harm includes the murder of a police officer and the deaths of four others. Massive harm which was quite foreseeable. The clear and present danger test is met here.

  10. My brief would be simple:

    Dear Senators – the Democrats think you are cucks with no balls. Prove them wrong. Signed Trump’s Lawyer (that way it works for any lawyer representing Trump as they seem to change quite a bit).

    1. Jacobins, Jimmy, Jacobins.

      While wrong, the Democrats were at least sane…

      1. ???

        Sane in regards to what? How’s that sanity going with the approaching 40 EO’s

  11. A bit tangential to the theme of the article, but still another Constitutional black hole: How are the criteria for removal and disqualification differentiated from each other: which of “Treason, Bribery, or other high Crimes and Misdemeanors” merit only removal (giving the removed party the opportunity to re-enter government and again commit such acts) and which merit disqualification? Apparently the Senate has decided that only a simple majority vote is enough for disqualification, not the supermajority that is required for removal. This is a plausible reading of the Framers intent but having all removals also requiring disqualification at the same time and thus both being subject to a supermajority vote is also plausible – especially given the nature of the offenses (“Treason, Bribery, or other high Crimes and Misdemeanors”) listed. Did the Framers really think that voters would want someone convicted publicly of such offenses (assuming they are proven) to be simply removed from office but able to wield power in the future? Since removal from office is made mandatory upon conviction by Article II, Section 4, it could be plausibly argued that disqualification is only possible upon removal from office and not as a free standing punishment.

    1. Disqualification isn’t a free-standing punishment for current office holders. But since the plain text permits the Senate to convict former office holders who were impeached while in office, it seems to follow such former office holders can be disqualified without removal.

      Also, I’m not following your point about 2/3 for removal and simple majority for disqualification. For either penalty, a 2/3 majority is first required to convict. Only then is removal automatic (if applicable) and disqualification put to an additional simple majority vote.

  12. It’s interesting that Blackman purports to bring up the Clinton impeachment, because he has analyzed a strawman. While Clinton was vilified for having slept with Monica Lewinsky, he was not impeached for doing that. The charge was that he committed perjury in the civil trial of the Paula Jones sexual harassment case, and won by doing so.

    But that impeachment trial was best known for the dismissive comments by Democratic senators, who regarded the whole thing as a waste of their time since there was no way they were going to convict a member of their own party, regardless of the merits.

    Any Republican who does not seize the opportunity now to do the same to them is being an idiot.

  13. As to the foreseeability of the Capitol Police opening the doors and standing by calmly as the demonstrators filed past and walked upstairs… that could go either way.

    But the dead-solid gut cinch was that bare-chested QAnon Shaman in his red, white, and blue war paint, spear, bison horns, and raccoon furs sitting in Mike Pence’s chair. I could see that coming a mile away! I believe I would call him (garbed and accoutered just as he was on Jan. 6) as the first witness for the defense.

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