Impeachment

Issue-Voting and Impeachment

Why Republican Senators can vote on the merits of Trump's impeachment even if they believe the Seante has no power to impeach ex-officers.

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I have long been fascinated by the "voting paradox" in multi-member adjudicative bodies (including, but not limited to, appellate courts), cases in which there is a majority preferring one outcome (plaintiff wins, say), while there are, simultaneously, separate majorities on each issue in the case leading, logically, to the opposite outcome (plaintiff loses).

Here's a simple example.  Imagine a 3-member tribunal (Doe, Jones, and Smith) at your local soccer club, which meets to review all disciplinary actions occurring during games in your league.  This past weekend, a player on one of the teams was given a red card and ejected from the game, and the tribunal is considering whether the foul was so flagrant that the player involved should be suspended for the entire season.  There's a threshold question: Does the tribunal even have the power to issue such a suspension order? Jones and Smith think it does; Doe does not.  As to whether the foul would merit a suspension, Smith and Doe think it would; Jones does not.

Power to suspend?                 Suspension Warranted Here?

DOE          NO                                         YES

JONES       YES                                        NO

SMITH       YES                                        YES

A majority of the panel (DOE + JONES) would not issue the suspension. At the same time, a majority of the panel believes both that it has the power to issue the suspension (JONES + SMITH) and that a suspension is warranted on the facts of this case (DOE + SMITH).

So what should they do? What's the right result here?

This problem turns up with some frequency in decisions from multi-member appellate courts, including the Supreme Court, and I've blogged about it on a number of occasions (here, here, here, and here).

I recalled all of this last week, when the Senate, by a 55-45 vote (with five Republican senators joining the 50 Democrats), rejected a motion introduced by Sen. Rand Paul (R-KY) which declared that is unconstitutional to hold an impeachment trial for an individual who no longer holds federal office. [My co-bloggers have exhaustively analyzed the constitutional arguments pro and con—see here, here, and here]

Some commentators have suggested that this necessarily—logically—means that the Senate will acquit ex-President Trump at next week's trial.  As Senator Susan Collins put it: "Do the math."  Conviction requires a 2/3 supermajority, and if 45 Republican Senators believe that the proceeding is constitutionally impermissible, that gives ex-President Trump the votes that will ensure his acquittal.

That may indeed be true for the political calculus; the final votes of the 45 Republican senators may turn out to be entirely fore-ordained, dooming the forthcoming trial to return a judgment of acquittal. Indeed, some or all of those 45 might, I suppose, refuse to participate at all in the proceedings, and abstain from a final vote, on the grounds the proceedings are not constitutionally authorized.

But it's not some kind of logical or legal imperative; it is neither unreasonable nor illogical nor hypocritical for those 45 senators, once the Senate as a body has decided the threshold question of its power and determined that it can proceed, to participate in the deliberations at trial, to weigh the evidence, and to vote on the merits of the charge.

It's a simple case of "issue-voting."  In my hypothetical above, if the tribunal meets on Monday to consider the threshold question of its jurisdiction to proceed, and after deliberation it decides in the affirmative, it is not illogical or unreasonable or hypocritical for DOE to vote, on Tuesday, in favor of a suspension. "I don't believe we have the power to do this, but the tribunal of which I am a part has decided otherwise, and it would serve no purpose for me to sit out the deliberations on the merits."

Courts, of course, do this all the time. A 3-judge panel might hear an interlocutory appeal on the question of whether the lower court has personal jurisdiction over the defendant; if it decides 2-1 in the affirmative, the judge in the minority is not thereby disabled somehow from participating in a review on the merits should that come up at a later date.

So a vote in favor of Sen. Paul's motion does not foreclose any senator from considering the merits of the case when it is formally presented next week.  (Interestingly, the top two Republican leaders in the Senate—Sens. McConnell and Thune—both of whom supported the Paul motion, have both dropped hints that this is in line with their own personal views on the matter, and that they will participate fully in the upcoming trial and consider the evidence presented and base their votes accordingly).

 

NEXT: McConnell and Schumer Agree to Senate Power-Sharing Deal

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  1. Only an academic would come up with an argument like this…

    1. Also judges.

      1. Senators are not judges. Impeachment is not a legal proceeding.

        1. I agree. But I disagree that only an academic would come up with an argument like this because it’s a real issue for judges in the real world. Judges might decide that they lack jurisdiction but be told by a higher court that they have it. Now they may have to decide for the plaintiff instead of continuing to rule for the defendant.

          1. It’s not even a paradox. You simply have to reject what you might call the Clarence Thomas approach to judging. Thomas believes that the law is what he says it is. When his colleagues outvote him, it doesn’t matter: he will still issue the same boring, petulant, poorly argued dissent for decades every time the issue comes up.

            The way Supreme Court justices who are less petulant approach this issue is this- when you get outvoted, the decision of the majority becomes the decision. And at that point, it binds you just like it binds the parties.

            So there’s no paradox.

            And this works in real life too. Say a 5 person family decides to go on vacation. They take a vote and 3 of them vote to go to Orlando, while 2 of them vote to go to Nashville. So now the decision is made, you go to Orlando. Now, you take another vote on whether to fly or drive. You were one of the people outvoted on the location vote. Maybe you would have voted to drive to Nashville, but since Orlando is farther away, you vote to fly. Makes perfect sense. No paradox at all.

            1. I agree. It’s not a paradox, just an order of operations. Please Excuse My Dear Aunt Sally for legal decision making.

            2. “And at that point, it binds you just like it binds the parties.”

              I suppose that, in genuinely analogous cases, (They’re voting on some non-legal matter, such as where to eat lunch.) he does that.

              Keep in mind that, in legal cases, they’re voting on questions of rights and legal entitlements. If the Court rules against someone you, in the minority, think they should have voted for, you think the Court is wronging them,

              If the Court violates, (in your opinion) one person’s rights, how does that imply that you should become complicit in that wrong the next time?

              Yes, I suppose the Court does occasionally get cases that don’t implicate rights in this way, but just involve arbitrary decision rules that could reasonably go either way, but a way does need to be settled on. Were Thomas to remain the stubborn holdout in THAT sort of case, it would not reflect well on him.

              I don’t get the impression he does that.

              1. If the Court rules against someone you, in the minority, think they should have voted for, you think the Court is wronging them,

                So what? The point is, a decision of a 5 justice majority establishes the law, even if it is in Thomas’ opinion (which, without 4 other justices is, remember, not actually anything more than an opinion) wrongly decided.

                If the Court violates, (in your opinion) one person’s rights, how does that imply that you should become complicit in that wrong the next time?

                A person who truly believes this cannot take the judicial oath. The job requires that sort of complicity. It requires that a judge impose unjust results that might violate the judge’s moral beliefs, and might even result in sending the judge to hell. Doesn’t matter.

                The reality is that this sort of complicity argument is usually a lie. The types of people who really believe it never form the ambition to become judges- you can find them working at a homeless shelter or in a convent. But the sorts of ambitious strivers who actually become federal judges know darned well they are going to have to sometimes make moral compromises.

                Yes, I suppose the Court does occasionally get cases that don’t implicate rights in this way, but just involve arbitrary decision rules that could reasonably go either way, but a way does need to be settled on. Were Thomas to remain the stubborn holdout in THAT sort of case, it would not reflect well on him.

                I don’t get the impression he does that.

                Actually, he literally does this all the time- many of the 1 justice dissents he issues are on quite obscure issues.

                1. “So what? The point is, a decision of a 5 justice majority establishes the law,”

                  Thomas isn’t a legal realist, he thinks the majority of the Supreme Court can be wrong about the law, that it is something outside the Court, not something the Court creates.

                  The guy before the Court isn’t wronged in the sense Thomas, as a justice, concerns himself with, if an unjust but constitutional law is accurately applied. He is wronged, legally, (And it is legal rights and wrongs judges and justices deal in.) if his legal rights are not vindicated due to the Court getting the law wrong.

                  1. You don’t understand/appreciate what our tradition of common law is about.

                    1. I appreciate that written laws aren’t common law. That we’re nor England, with a common law ‘constitution’.

                2. Then things like the Dredd Scott case, Plessy v Ferguson, or (hopefully one day) Kelo v New London should never be overturned.

                  Once the SCOTUS stamps their approval on a codified violation of rights… then that’s totes cool from now until eternity?

                  Given that judges are human and prone to error… the court should not be duty bound by precedent in the face of rights violations. Precedent should matter… I’m not saying ignore it, or just make stuff up. I get that by reducing reliance on precedent we increase the risk of arbitrary rulings. That it can create its own forms of injustice by creating unreliable laws. However… it isn’t sacred and should always be subservient to attempted attainment of justice.

    2. No, any clear thinking person would.

    3. People doing things for intellectual pursuits or pleasure and not partisan reasons surely confuses Jimmy…

  2. Except this particular issue strikes me as aking to subject matter jurisdiction for federal courts. I don’t think your rule applies to that, since without subject matter jurisdiction, a court is powerless to act.

    I think it is clear that for someone who has NEVER held office, the Senate has no power to disqualify him. Such a trial is beyond the Senate’s delegated power, and any disqualification would be null and void.

    If you accept the argument here that the Senate cannot constitutionally disqualify Trump, then you are in the same position, IMO.

    1. akin, not aking.

      Darn this lack of an edit function.

    2. Okay. Let’s say a federal trial court decides there is no standing for plaintiff and dismisses the case. The appeals court reverses 2-1 and remands for a merits determination. The trial court issues a merits decision and the case comes back to the same appellate panel. Now the 1 dissenter could technically decide to vote one way or the other for the same reason as the first time he dissented. But, his court now has a precedent on standing that says his view on standing is wrong. He would have to apply the court’s view on the topic in similar cases. Since no one is asking him to rule on standing anymore, because of the precedent that has been set, it would make sense for the judge to base his ruling on the merits. Him basing a vote based on a wrong view is not helpful to anyone.

      The Senate of course has no such thing as binding precedent. They can keep voting the same way at different steps for the exact same reason or no reason at all other than they want to vote that way on that day. Senators, even in a court of impeachment, are not thinking like judges. They can also change their mind on this question. (Although the dissenter in my example might also change his mind that standing exists) They can even be persuaded that it is constitutional after reading the House brief or hearing House arguments.

      1. ” Him basing a vote based on a wrong view is not helpful to anyone.”

        Clarence Thomas, explained in one sentence.

        1. Yeah he popped into my head as I was typing that.

        2. I’ve always thought him a uncommonly silly justice for his obstinate tendency to do that.

          1. Silly for a judge in a lower court, sure. Silly for a judge on the highest court? The court which has the final say. Why would that be silly?

            The analogy above fails for Supreme Court justices.

  3. I’d call this the Worst Post Ever but it was darn amusing

  4. Yeah,

    but what merits? The magic of mindreading?

    1. You do understand that in many criminal prosecutions, the accused’s state of mind has to be proven as part of the crime, and that except in rare cases, the prosecution does this using circumstantial evidence, right?

      1. Mind-reading by the fact-finder can make the difference between a capital sentence and a light sentence or even acquittal.

  5. Surely you are playing some kind of trick on us.

    No senator who thinks that impeachment is unconstitutional will be inclined to vote for conviction…because that would be (in the senator’s view) unconstitutional.

    Any other analysis is sophistry.

    1. Allowing that your idiosyncratic view of the constitution may not be correct is actually pretty important in our pluralistic society.

      1. They can also decide it’s not unconstitutional after all. They’ll have the House brief, the Trump brief and the arguments of the managers/defense/their own research, which might lead them to a different view.

        1. They can also decide it’s not unconstitutional after all.

          Of course, they can.

          But that’s not Post’s suggestion here.

          And if it were, it would seem simply unlikely, rather than sophistry.

      2. Allowing that your idiosyncratic view of the constitution may not be correct is actually pretty important in our pluralistic society.

        That’s only important when talking about the other guy. In fact, that’s the only time that “important” idea even exists.

  6. The 55-45 vote was to table debate on Paul’s point of order that the Senate lacks the constitutional authority to try Trump. Portman, who voted with Paul, said he hadn’t made up his mind. Perhaps he will conclude the Senate has jurisdiction.

    1. Isn’t the problem that the Senate refused to entertain/hold a hearing on the question. Seems like it would be worthwhile to put the discussion on the record (Harboring no illusions that anything said would influence anyone’s vote – They didn’t waste time with hearings in the house)

  7. “the final votes of the 45 Republican senators may turn out to be entirely fore-ordained”
    as would the votes of the 50 Democratic senators.

    1. I’ll be interested on the voting numbers if Trump puts on *only* the ‘it was a legitimate insurrection because the election was stolen’ defense.

      I don’t think he’s quiite so dumb as to make it his only defense, but that’d be quite a thing for the GOP to wrangle.

      1. Its the same 5-8 votes up for grabs no matter what he argues.

        Why would he call a riot an insurrection though?

        1. If he’s leaning into “it was justified” shouldn’t he refer to it as a revolution?

        2. “Its the same 5-8 votes up for grabs no matter what he argues. ”

          This is, sadly, the truest thing I’ve seen Bob say. It of course also speaks volumes about the current GOP.

          1. But not your principals principles? Democrats are above reproach…

      2. I’ll be interested to see who explicitly endorses the First Amendment argument. I know Hawley has no issue making dumb First Amendment claims so I assume he will.

      3. I’m pretty sure he’s arguing that HE was only advocating legitimate protest, regardless of what anyone else might have taken it into their head to do.

        1. Do you think a leader should take any care to what they are saying because it might, as my folks used to say, ‘rile up’ at least some of their followers to do something stupid/dangerous*? Let me be explicit that I don’t think an admission of yes means anything about the specific case of Trump.

          *I use that colloquialism to avoid the wrangling over legal terms of art such as ‘incitement’ which could be a very different thing

          1. I don’t know, do you hold Bernie responsible for the House baseball shooting?

            At some point you have to communicate what you actually mean to sane people, despite knowing that insane people will take it wrong.

            1. You don’t have to be ‘insane’ to take hyperbole as justification to do something dangerous and stupid, do you? I mean, to use another colloquialism, when you aim to get people ‘fired up’ you have to realize it’s a natural and foreseeable consequence that some might get ‘too’ fired up…Do you think there is *no* duty or responsibility when expressing yourself?

              1. How many Trump rallies had previously involved riots? That kind of bears on whether he’d rationally think his followers the rioting sort.

                1. You’re still dodging this question and making it about Trump. I’ll repeat when I’m not mentioning him:

                  You don’t have to be ‘insane’ to take hyperbole as justification to do something dangerous and stupid, do you? I mean, to use another colloquialism, when you aim to get people ‘fired up’ you have to realize it’s a natural and foreseeable consequence that some might get ‘too’ fired up…Do you think there is *no* duty or responsibility when expressing yourself?

        2. Read something sometime, Brett. His lawyers quit because he wants to argue justification – that the election was stolen.

          He’ll probably back down, but your guy is a lunatic.

          1. Even Brett said in writing that Trump was and should give it up after the state electors cast their votes.

            He did not. He continued for weeks and weeks. He only stopped when it blew up in an entirely unprecedented atrocity/embarrassment.

            It would be odd if Brett didn’t realize that he’s, well, on an extreme end of the political spectrum. There’s nothing necessarily wrong with that, maybe extremism in the defense of liberty and all that. But you’d think he could grasp: ‘wow, I’m to the right of most people, and this guy is the freaking POTUS and he went way farther than I would have thought!’ and that THAT is problemattic…

          2. “but your guy is a lunatic”

            I think of him as more of a con man who just cannot accept that his last con failed miserably, so he keeps trying it in the vain hope it will work.

            I’d also rather not hand him an insanity defense to the criminal charges. Coming soon to a theatre* near you.

            _________________________
            *Do theatres still operate? Between Netflix and Amazon on the one hand, and COVID on the other, I cannot see how they can survive. But cliche phrases outlive technological obsolescence. Just follow the horse that already left the barn.

          3. There’s good reason to believe that they quit not over defense strategy, but over a billing dispute.

            Trump, former impeachment lawyer argued over fees: report

  8. I have a vague memory that Felix Frankfurter used to piss off his colleagues by the way he handled cases on the merits when he thought that cert. had been improvidently granted, but I can’t for the life of me remember what it was he did.

    1. Went onto the bench dressed only in a giant fake bun?

      1. We have a weiner.

  9. Eh, I disagree. And I am relatively pro impeachment here.

    My basic thought process is this: Whether this is constitutional or not is likely not subject to judicial review. It is likely a political question that the court will not consider.

    Therefore, congress has a duty to assess whether or not their actions are constitutional. If the courts do not have that responsibility, Congress must have, right? So don’t senators, if they feel their actions on voting yes are unconstitutional, have an obligation to vote no, or at least abstain?

    1. If they think it unconstitutional, they’d better at least vote present. It’s 2/3rds of those voting, not of the total membership. Just refraining from voting lets Trump be convicted with fewer votes, presumably not an outcome anyone thinking the vote unconstitutional intends.

      1. Then that would be just the same as voting no.

      2. I’d like to see someone far smarter than I game this out. If I were in the Senate I would vote to convict if Mr. Trump were still President. But I have considered the arguments and do not think the Senate has the authority to try a former president. Therefore, if I do not show up for the trial, it decreases the size of the trial body – let’s call it the jury, which should give more weight to each member. The Constitution provides, “no Person shall be convicted without the Concurrence of two thirds of the Members present.” Accordingly, let’s say that all 55 members who believe the Senate has the authority to try, show up and all vote to convict AND 20 of the Senators who don’t believe the Senate has the try simply don’t show up, this leaves a jury of 80. If all 55 vote to convict, it doesn’t matter how the remaining members vote, because 68% of the 80 on the jury would convict and therefore Mr. Trump would be convicted. Am I right – and please check my math.

  10. Remember the old joke ad: “I’m not a doctor, but I play one on TV”? Senators are not judges, but they play judges in impeachment trials. And only in impeachment trials. They are, in real life, politicians (like Batman in real life is Bruce Wayne.) A Senator who votes that there’s no jurisdiction to try an ex-President is making the political judgment that he/she does not want Trump to be subjected to the sanction of removal from office (oops. that’s off the table), and disqualification from future election. That would spare him/her from making a decision on the merits of whether to convict Trump or not.

    But if now the question is whether to convict Trump or not, the Senator looks at his State and asks himself: If I vote to acquit Trump, the Democrats will use that against me in the next election; if I vote to convict, I’ll be primaried. Which is the greater threat? The answer doesn’t depend much on the merits of the case, but more on how it’s perceived in that Senator’s State.

    We appoint Federal judges for life, not because they are all-wise, but because we don’t want them to face the calculus that Senators face in an impeachment trial. And we elect Senators for a 6-year term of office and give them the power of impeachment because we do want them to face that calculus.

    1. Now that you mention it, when the original Constitution was enacted, including the Impeachment and Removal Clause, the Senate consisted of people voted in by state legislatures, so they were more insulated from public opinion than today. It was only in 1912, when the 17th Amendment passed, that direct election of Senators was mandated.

      Hamilton wrote (in Federalist # 65) that the Senators were independent enough to be impartial:

      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?

      One can question whether this is still true today.

      1. There’s a bit of a tradition of upper houses having judicial powers. The House of Lords heard impeachments and served as an appellate court. The New York Senate was an appellate court until early in the 19th century.

        I wouldn’t draw a rigid line of demarcation between icky politicians in the Senate and austere judges in their temples of justice.

  11. In the 1876 Belknap case, there were three senators who voted against jurisdiction, but then later voted to convict.

    So there is some precedent for this idea.

  12. It’s pretty simple in the hypothetical, DOE should not opine on whether it’s appropriate here, once DOE concludes that the power is lacking.

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