My work was cited by President Trump's attorneys

Both posts were written long before Impeachment 2.0

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Today, President Trump's attorneys filed his trial memorandum. (The document filed last week was merely an "Answer"). My work was cited in two places. Both pieces were written well before the current impeachment process.

First, the attorneys discuss the fact that Chief Justice Robert will not preside at this impeachment trial. In 2019, Seth Barrett Tillman and I wrote about what would happen if Chief Justice Roberts was unable or unwilling to serve at an impeachment trial. In a follow-up post, I discussed whether this question was justiciable. I ultimately did not answer this question, but said the question was open under Walter Nixon v. U.S. Trump's attorneys suggested the issue was justiciable:

It is also true that, even if the Senate were to convict him without jurisdiction, such a decision would not go unchallenged. If Mr. Trump decides to run again, any non-binding "disqualification" from an unauthorized Senate vote could and would be challenged in a court of law. As scholars across the spectrum have agreed, certain aspects of impeachment are justiciable. For example, if, in a case like this, where "the President was tried by someone other than the Chief Justice,"92 a Court would be likely to hear the matter on review.

FN92: Josh Blackman, What happens if the Chief Justice cannot serve at the Presidential impeachment trial?,The Volokh Conspiracy(Nov.25, 2019), https://reason.com/volokh/2019/11/25/what-happens-ifthe-chief-justice-cannot-serve-at-the-presidential-impeachment-trial/.

Second, the attorneys cited my 2017 Lawfare post on obstruction of Justice. In that post, I first opined that the First Amendment would place limits on the impeachment process. The attorneys quoted a paragraph from my post.

The Constitution must, at a minimum, serve as a limitation on the ability of Congress to impeach for "high crimes and misdemeanors." As noted by a Constitutional scholar a few years ago, if that were not the case, there would be a host of internal contradictions within the Constitution that could not have been intended by the Framers:

Additional negative restrictions would also extend from the panoply of protections in the Bill of Rights. For example, an officer could not be removed from office for refusing to self-incriminate (Fifth Amendment) or seeking the assistance of counsel in a criminal prosecution (Sixth Amendment). Whatever "high crimes and Misdemeanors" means, it cannot include conduct that is itself protected by the Constitution; such would be an internal contradiction. Or, to frame it in modern doctrine, it would amount to an unconstitutional condition: punishing a person for exercising a right protected by the Constitution.

FN100: Josh Blackman, Obstruction of Justice and the Presidency: Part II, Lawfare (Dec. 12, 2017)(emphasis original), https://www.lawfareblog.com/obstruction-justice-and-presidency-part-ii/.

The Attorneys discuss Article 10 of the Johnson impeachment. Seth and I wrote about this Article in a January 14 post.

This is not the first time that Congress has impeached and tried to convict a President for making a speech, and the last time did not work either. The tenth Article of Impeachment against Andrew Johnson read as follows:

That said Andrew Johnson, President of the United States, unmindful of the high duties of his high office and the dignity and proprieties thereof, and of the harmony and courtesies which ought to exist and be maintained between the executive and legislative branches of the Government of the United States, designing and intending to set aside the rightful authorities and powers of Congress, did attempt to bring into disgrace, ridicule, hatred, contempt and reproach, the Congress of the United States, and the several branches thereof, to impair and destroy the regard and respect of all the good people of the United States for the Congress and the legislative power thereof, which all officers of the government ought inviolably to preserve and maintain, and to excite the odium and resentment of all good people of the United States against Congress and the laws by it duly and constitutionally enacted; and in pursuance of his said design and intent, openly and publicly and before divers assemblages of citizens of the United States, convened in divers parts thereof, to meet and receive said Andrew Johnson as the Chief Magistrate of the United States, did, on the eighteenth day of August, in the year of our Lord one thousand eight hundred and sixty-six, and on divers other days and times, as well before as afterwards, make and declare, with a loud voice, certain intemperate, inflammatory and scandalous harangues, and therein utter loud threats and bitter menaces, as well against Congress as the laws of the United States duly enacted thereby, amid the cries, jeers and laughter of the multitudes then assembled in hearing, which are set forth in the several specifications hereinafter written, in substance and effect, that it to say:

While no vote was ever taken on the tenth Article, multiple Senators expressed their concern about trying to impeach for inflammatory rhetoric. James Patterson noted that "in view of the liberty of speech which our laws authorize, in view of the culpable license of speech which is practiced and allowed in other branches of the Government,I doubt if we can at present make low and scurrilous speeches a ground of impeachment."194 Senator Sherman echoed this view; while indicating his support for conviction on a number of the other articles, he voiced concerns about the tenth article, arguing that "we must guard against making crimes out of mere political differences or the abuse of the freedom of speech." FN195

FN195: Katherine Shaw, Impeachable Speech, 70 Emory L.J. at 62:

My view about impeachment and the First Amendment is not new. I've long held this position. And other scholars, including Professor Katherine Shaw, have agreed that the First Amendment should apply to the impeachment process. Indeed, several of the signatories of a recent scholars letter agree that the First Amendment applies to impeachment proceedings. Do I have a minority view? Sure. What else is new? Is it frivolous? Tell it to Senator Fessenden who chaired the Joint Committee on Reconstruction.

The attorneys use a third argument that Tillman and I have made: there is a distinction between elected and appointed positions with respect to the First Amendment:

Contrary to these express holdings of the Supreme Court, as announced more than fifty years ago, the House Managers assert in their memorandum that "the First Amendment does not shield public officials who occupy sensitive policymaking positions from adverse actions when their speech undermines important government interests."116 In making this spurious claim, the Managers rely on two cases concerning appointed public employees, having inexplicably failed to bring to the Senate's attention the squarely and obviously on-point Supreme Court authority concerning elected public officials (discussed at length supra). . . . .

Such cases cannot serve as the basis for a First Amendment analysis of Mr. Trump, or in fact any president, because elected officials are different in kind from non-elected public employees under the First Amendment.

The President is not a civil servant. The President is not an appointed officer with limited policy-making decisions. The President is elected through a nationwide vote. And, in our view, the President should be afforded the widest latitude of free speech rights.

Fourth, the attorneys argued that Trump's speech was protected under the Brandenburg standard:

Absent an imminent threat, therefore, it is expressly within the First Amendment to advocate for the use of force; similarly, it is protected speech to advocate for violating the law; and as Mr. Trump did neither of these things, his speech at all times fell well within First Amendment protections. He thus cannot be subject to conviction by the Senate under well-established First Amendment jurisprudence. . . .

Courts do not deem speech unprotected based on how it could possibly be contorted or misunderstood by an unreasonable listener. Rather, they engage in an objective inquiry to determine how a reasonable person would understand the words. Otherwise, speakers at public events would be put at the mercy of the unhinged reactions of their most unreasonable audience members. That is exactly what happened on January 6th, but the Senate, composed of reasonable and erudite members, can take a few minutes and read the speech themselves.

Here, the attorneys cite co-blogger Eugene Volokh:

As the Sixth Circuit has recognized, "[i]t is not an easy task to find that speech rises to such a dangerous level that it can be deemed incitement to riot."162 And unsurprisingly, "[t]here will rarely be enough evidence to create a jury question on whether a speaker was intending to incite imminent crime."163

FN163: Eugene Volokh, Crime–Facilitating Speech, 57 STAN.L.REV. 1095, 1190 (2005).

The trial begins tomorrow.

NEXT: Poetry Monday: "My Three Loves" by Henry S. Leigh

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  1. At this point I am convinced Seth Barrett Tillman is Josh Blackman’s alter ego. I mean, have YOU ever seen Seth write a stand alone piece? I didn’t think so!

    1. There is a list of all of his pieces
      here
      , including:
      ‘Opening Statement, Why President-Elect Obama May Keep His Senate Seat After Assuming the Presidency’.

      I expect you will present a report of your findings using style analysis of their “separate” writings. But it does appear only one of about 30 law review articles or notes is jointly authored, and the rest are blog posts, editorials, and amicus briefs.

  2. Not something to be proud of.

  3. “My work was cited by President Trump’s attorneys”

    So sad. On so many levels.

    1. Not at all. Prof. Blackman is proud of his diligent, scholarly work. And I commend him for calling attention to it.

    2. So sad. On so many levels.

      Not nearly as sad as the petty childishness behind that comment.

      1. Lol. As Sarcastro suggests below, you’re the Insult McSpittle of VC comment threads. Your disapprobation is a badge of honor I wear with pride.

  4. Congratulations JB. Regardless of the politics involved, that’s a big deal.

    1. “Regardless of the politics involved, that’s a big deal.”

      Yes! I hear they’re still celebrating a similar recognition — similarly related to the Trump Litigation Elite Strike Force — at Four Seasons Total Landscaping . . .

  5. Hang on, various lawyers representing (or purporting to represent) Donald Trump have been laughed out of dozens of courtrooms across the country for the last 3 months. Why on earth would you want to brag about one of them citing your work? How is that not the very definition of the kiss of death?

    1. Well despite all the very convincing arguments to the contrary, I am convinced Blackman’s arguments will carry the day and Trump’s lawyers will win this particular case, despite their previous failures.

      1. And pigs will discover heavier-than-air flight

    2. “Of the 22 cases that have been heard by the courts and decided on their merits, Trump and Republicans have prevailed in 15, according to citizen journalist John Droz Jr., a physicist and environmental advocate in Morehead City, N.C.”

      https://www.theepochtimes.com/trump-won-two-thirds-of-election-lawsuits-where-merits-considered_3688543.html?utm_source=newsnoe&utm_medium=email&utm_campaign=breaking-2021-02-07-4

      1. Don’t you know those theories have been debunked, comrade?

      2. Epoch Times.
        Citizen journalist John Droz Jr.,

        Hmmmm
        Maybe double-check your source, TP.

        So as not to ad hominem, I did a spot check and Googled at random one of their ‘wins.’

        RNC v. Gill was not a win.
        Status: Motion for temporary injunction granted August 28, 2020; Interlocutory appeal denied September 16, 2020; Voluntarily dismissed December 17, 2020

        Obvious lying, ThePublius. If it seems too good to check, maybe you should check it, eh?

        1. That’s deceptive, and substantially incorrect, Sacastro. There are two RNC v. Gills, in the first the injunction was granted, in the second it was let to stand.

          1. Was one not voluntarily dismissed?

            1. Was one not voluntarily dismissed?

              Good grief, Sarc — it was dismissed after the election to which it pertained was over. The preliminary injunction, prohibiting the behavior they filed the suit over in the first place (followed by the denial of the interlocutory appeal to try to lift the PI before the election) was the win. And that’s exactly what the cited website says:

              RNC v. Gill, in the Iowa courts, in which the Trump campaign won an injunction preventing a county official from distributing and accepting signed forms containing preprinted information.

              And I fully credit you with enough savvy to understand all that. So maybe spin down the rhetoric a bit, mmmmkay?

              1. That is not a victory.

                You know this.

                Stop linking nonsense.

                1. Dude, I know it’s been a while since you actually practiced law. But in the real world, achieving the exact result your client was seeking from the suit (here, preventing acceptance of preprinted ballots in an election) does not get chalked up in the “loss” column, for reasons self-evident to most people who are not bending over backwards trying to make a pinheaded academic point.

                  1. Dude posted an article inflating the count of Trump’s victories by counting withdrawn cases as victories.

                    I don’t care about your spin, that’s not a victory.

                    1. Excuse me sarcastic, but if you file suit to stop some election related conduct, get a temporary injunction until after the election barring that conduct, then that is a win.

                      Now I realize the law can be a strange beast, like the fact that Aaron Hernandez conviction is considered void because his appeal was pending when he committed suicide, the prosecutors can still consider his conviction as a win in counting their conviction stats.

                  2. ” in the real world, achieving the exact result your client was seeking from the suit […] does not get chalked up in the ‘loss’ column.”

                    The exact result the client wanted was that votes for Biden wouldn’t count, and that isn’t the result they got.

          2. That’s deceptive, and substantially incorrect, Sacastro.

            But you repeat yourself.

            1. All you do is call people names.

              Be less toxic.

      3. Even if you accept the rather dubious categorization used here, the spreadsheet identifies only four cases that Trump purportedly “won on the merits”, all of which were before the election. If anything, the article supported Martinned’s point.

  6. Wow, Josh, bully for you. However, I don’t think that helps you escape from a Tier 5 law school.

    1. Just how many tiers are there, anyway? 🙂

      1. None, sometimes.

        1. Eric Clapton is great!

          1. Close to the best.

    2. I don’t think anyone who doesn’t kowtow to the liberal orthodoxy could get a position at a “Tier 1” law school.

      1. Wow…you think Eugene Volokh kowtows to liberal orthodoxy?!? That’s gotta be in the running for dumbest VC comment in 2021.

        1. If you go ahead and Google it, the Tier 1 law schools are commonly referred to at the T14. And UCLA is not in the T14.

          1. OK, nitpicker. Adrian Vermeule. Liberal kowtower or not Tier 1?

            Mike McConnell. Liberal kowtower or not Tier 1?

            John Yoo. Liberal kowtower or not Tier 1?

            Randy Barnett. Liberal kowtower or not Tier 1?

            Amy Wax. Liberal kowtower or not Tier 1?

            1. So, the phrasing was “could get”. Not “already have”

              In regards to Adrian Vermeule, do you honestly think if he didn’t already have tenure at Harvard he would EVER get a job there in today’s climate? Be honest with yourself.

              1. Prof. Vermeule’s current prospects relate more to him (gone off the deep end, become a laughingstock) than to America’s top law schools. Prof. Kerr was hired by a top school recently (and by another very good school just before that), a point that eviscerates your limp assertion.

                Losing the culture war to your betters has made you extremely cranky, Armchair Lawyer. That is good, because obsolete right-wingers should be disaffected and uncomfortable in modern America.

      2. Well, then I will pose the question to you, AL.

        How many tiers are there? Does it matter all that much?

        1. Does it matter if you go to, say, the University of Chicago instead of South Texas College of Law?

          Yes.

        2. Depends how you word it. But commonly, “Tier 1” is considered the top 14 Law Schools or “T14”.

          Does it matter? In terms of job placement, yes, it does.

          1. Well, I see that UCLAW is #15 this year. Really nit-picking, IMO.

            (I also see that it now costs $48,000/year for in-state students. Cost me about $1,500 when I went, so it’s gone up a bit in price.) Yikes!!!

            1. There are a few different ways of looking at it.

              Personally, I found the “Outside the Law School” rankings, and other commentary about the debt – earnings ratio worth an amusing read.

              http://outsidethelawschoolscam.blogspot.com/2017/05/the-seven-tiers-of-law-schools.html

        3. “How many tiers are there?”

          In law school I was taught that the correct answer to all law school questions is “it depends”.

          Specifically, the answer to this question depends on who you are asking. For example, there’s people who take the US News rankings seriously, and people who do not. Besides that, there’s the question of what, exactly, someone wants to do with their law school education. Want to be a federal judge? If so, there’s about 10 law schools to choose from. Want to sit for a state bar exam (or better still get a license without having to sit for a state bar exam)? Depending on what state(s) you’d like to be licensed in, you may have a handful of schools to choose from, or possibly dozens or hundreds of schools to choose from.

  7. Congratulations! You must be so proud.

  8. And, in other news, Josh Blackman canceled for supporting racist, homophobic, misogynistic traitor’s unfounded defense claims.

    1. Jerry,
      Don’t be so nasty, and don’t support the cancel culture.

      1. Don,
        I didn’t take Jerry’s comment that way. I assumed his point was: “Josh B routinely whores his integrity in his attempts to defend a racist, homophobic, misogynistic traitor . . . AND, there have been **NO ATTEMPTS** to cancel/silence him.”

        Jerry can speak up if I am being unfairly charitable to him in re my assumption. 🙂

        1. So, they haven’t gotten that far down the list yet. That’s all it means.

          1. There’s Brett’s charitable impulse surfacing again.

  9. I am no scholar, but Blackman and Tillman’s claims do not appear well researched. Professor Tillman wrote a lengthy article on this subject. Profs. Blackman and Tillman co-wrote the last blog post here on this subject , and cited the article and provided a link to it. Professor Tillman’s article argues (at pp. 81-82):

    “In 1792, the Senate issued an order directing Secretary of the
    Treasury Alexander Hamilton to draft a financial statement listing all persons holding ‘Office . . . under the United States’ and their salaries…. Hamilton did not include the President, Vice President…”

    This is Prof. Tillman’s leading piece historical evidence — and it is false. Hamilton’s accounting of “offices… under the United States” ABSOLUTELY included the President and Vice President. Here is a link to Hamilton’s document:

    https://memory.loc.gov/cgi-bin/ampage?collId=llsp&fileName=037/llsp037.db&recNum=64

    It is also noteworthy that the document is titled offices “of” the United States (at the very top, in all caps), and purports to provide a list of offices “under” the United States — Tillman and Blackman’s thesis, if I understand, argues at length these are different things with significant legal implications — crucially under the disqualification clause — but Hamilton seemed to be using the phrases interchangeably.

    Prof. Blackman and Tillman reaffirm the mistaken historical claim in the body of the last blog post here, citing as historical evidence, “[i] Secretary of the Treasury Alexander Hamilton’s 1793 financial statement, prepared in response to a Senate order…” I cannot understand how Hamilton’s document support’s their claim.

    If I am misreading the evidence, I hope someone will correct me!!

    Here is a link to Prof. Tillman’s original article:

    https://poseidon01.ssrn.com/delivery.php?ID=744091026082099004091007005118095014121049062052064082095002067119071021011100071099043060010011039008118088087084029124065002062000008059031120108091012116024124050022031124080082096074025110030095107116076031024114099084005093110073099070126029118&EXT=pdf&INDEX=TRUE

  10. This places Blackman in the esteemed company of a guy who doesn’t know the difference between Michigan and Minnesota.

  11. ” Do I have a minority view? Sure. What else is new? ”

    Self-awareness flickers . . .

  12. They also cited Gateway Pundit.

    Enjoy your company, Josh.

  13. “My work was cited by President Trump’s attorneys”

    That’s tough. Well, I’m sure if you work hard,it’ll become possible to be taken seriously again. Someday.

    1. Well, I’m sure if you work hard,it’ll become possible to be taken seriously again.

      As if you have any idea what it’s like to be taken seriously.

      1. All you do is call people names?

        What does this add to the conversation?

      2. “As if you have any idea what it’s like to be taken seriously.”

        I would imagine being you and assume it’s the opposite of that…

  14. Congratulations, Josh. That is a good accomplishment in the real world. Ignore the comments from the disloyal scumbags here.

  15. I find myself in the odd position of agreeing with Professor Blackman on some of his positions. I especially agree that the First Amendment applies to impeachment proceedings, and in particular a President cannot be removed from office or barred from future office based on pure political speech.

    I disagree with Professor Blackman on the application of the law to the facts of Mr. Trump’s case. I think Mr. Trump’s conduct may fairly be characterized as going well beyond pure political speech and in particular crossing the line between protected speech and unprotected conduct set in cases like Brandenburg v. Ohio. For this reason, I am doubtful that the First Amendment protects former President Trump’s conduct.

    I continue to find myself flabbergasted by the fact that the House impeachment managers have been largely pinning their case to a claim that the First Amendment doesnmt apply to impeachment proceedings at all, and Congress can jolly well impeach a President anytime hecsays something it doesn’t like, or alternatvely, that the President is a sort of employee of Congress and impeachment is analogous to firing an employee, which for policy-making emoloyees can be done for nothing more than policy disagreements.

    In devoting the Senate’s attention to these sorts of arguments, the managers raise obvious doubts in any thinking person. The House comes across as an imperious body seeking to punish Mr. Trump for no other reason than that it disagrees with his policies. Why would they spend so much time claiming authority to do this if that’s not what theu are in fact trying to do?

    These arguments fundamentally weaken the House’s case. Instead of a maximalist, imperialist interpretation of Congress’ powers, the House managers would do better arguing that the Senate should still vonvict even under a minimalist interpretation. Instead of spotlighting their imperial-Congress argument that Presidents have few or no no First Amendment rights and Congress can impeach and remove them whenever it doesn’t like their speech or whenever they have policy disagreements, the managers should instead have focused the Senate’s attention on why Mr. Trump’s conduct was so egregious that it lay beyond the pale of anything that the First Amendment protects.

    That would have been a much more powerful argument for conviction.

    1. The issue is, if this was solely views in terms of Brandenburg v. Ohio, the House case would lose. There’s simply not enough there.

    2. How does Trump’s speech cross the Brandenburg line?

      1. You’re applying 20/20 hindsight. We know NOW that the would-be insurrection was led and carried out by ineffective, incapable buffoons, and had no chance of success.

    3. ReaderY: When you wrote, In devoting the Senate’s attention to these sorts of arguments, the managers raise obvious doubts in any thinking person. The House comes across as an imperious body seeking to punish Mr. Trump for no other reason than that it disagrees with his policies.; I agreed. My initial thought was that is precisely how it looks. This to me is the danger of using impeachment in political combat. It is remarkably like the 10th impeachment article of Andrew Johnson (to me).

      Unrelated point (not directed to you), because I am struck by so many of the negative comments. I am not a law professor, but I would think it would be a pretty huge deal to be cited as a legal authority in a formal Senate impeachment proceeding. I mean, how many law professors can claim that distinction? There are more than a few Volokh Conspirators here who can credibly make that claim. There are Professors Volokh, Somin, Adler, Blackman and Kerr; all I believe were cited in briefs. That is really something.

      1. I am confident Gateway Pundit is grateful for your kind acknowledgement of this achievement.

        1. Love the Grateful Dead. 🙂

    4. Can you quote a Trump statement that you think goes beyond Brandenburg?

    5. ” Why would they spend so much time claiming authority to do this if that’s not what they are in fact trying to do?”

      That is, in fact, what they are trying to do. We can give them some credit for being honest about it.

      ” the managers should instead have focused the Senate’s attention on why Mr. Trump’s conduct was so egregious that it lay beyond the pale of anything that the First Amendment protects.”

      The basic problem is that it doesn’t look THAT egregious to people who didn’t start out hating the guy. Who don’t have an “It’s Trump!” thumb on the scale.

      Look, I can’t really call it egregiously wrong for a losing candidate to pursue all available legal options to challenge their loss, even if they continue to do so after a reasonable person would have figured out it was futile. Nor are they required to pursue these challenges on legal basis their opponent views as valid.

      And in THREE elections, Democrats have challenged the EC votes of Republican Presidential candidates, on no better grounds than Trump had for asking Republicans to do so. While these challenges weren’t upheld, neither were they viewed as worthy of sanction.

      So, Democrats apparently consider challenging EC votes to be a legal option, no? And yet they’d claim Trump asking Republicans to do it impeachable?

      1. “Look, I can’t really call it egregiously wrong for a losing candidate to pursue all available legal options to challenge their loss,”

        He wasn’t impeached (again) for filing meritless lawsuits. He was impeached for trying to use a lawless mob to keep what he couldn’t win by Constitutional election, which is what proves that he did not keep faith with his oath to the Constitution, which is a disqualifying characteristic for holding office under the Constitution of the United States.

      2. :So, Democrats apparently consider challenging EC votes to be a legal option, no?”

        I don’t think so. Sending a lawless mob to challenge EC votes is definitionally not a legal option.

    6. I largely agree.

      The more I think about it, the position that the First Amendment does not apply at all to impeachment proceedings is risible. That would mean any criticism of Congress (or the Supreme Court) is impeachable, so long as there are enough votes in the House and Senate. Harry Truman could have been impeached and removed by a Republican Congress for calling it a Do-Nothing Congress. Anyone who thinks that is a clown, or has TDS, IMO.

      OTOH, Brandenburg v. Ohio was a criminal case. Impeachment isn’t. It has some characteristics of a criminal proceeding, but the results are largely civil — removal from office (moot in Trump’s case) and disqualification from office (not moot in Trump’s case).

      IIRC, in the civil context, the First Amendment strictures are different. You can fire a civil servant for speech that you could not prosecute him for civilly.

      Impeachment is not exactly that, either, since the presidency, at least, is an elected position, not a civil service position.

      But I could see a very reasonable argument that in context, certain speech renders one unfit for office, and constitutes a “high crime and misdemeanor,” even if not prosecutable as a crime. For example, speech that is reckless as to the likelihood it would incite violence against the government would qualify as the former, but not the latter. That is where Trump, IMO, would be vulnerable.

      1. meant to write: “you could not prosecute him for criminally”

    7. Several folks have asked why I think President Trump’s conduct satisfies Brandenburg.

      The speech itself is only part of it. He spent 30 minutes or so urging his followers not just to march on Congress, but to fight. He briefly slipped in “peacefully” in a brief sentence buried in the middle of the speech, but the whole tone of the speech was militant, urging his followers to take back their government from the traitors.

      Then there was what happened before the speech. He was in correspondence with prople who stormed the capital well before the rally, people who told him they were coming to Washington to fight for him and make sure Congress didn’t take the election from him. “The cavalryis coming sir.” . I think that correspondence is at least as relevant as the speech itself. He told his followers that it will be “wild.” This is evidence that well in advance, he was planning something that wasn’t just going to be a mere political rally and speech.

      Then there is what happened after. There were reports he didn’t just do nothing. Rather, he was DELIGHTED at what his followers were doing. That’s definitely evidence he intended the result, and had no intention of interfering with their efforts on his behalf.

      Finally, even if one doubts he intended the result and ignores or explains away the evidence from before and after, his duties to preserve the peace and protect the Capitol mean he can be convicted on mere recklessness without intent, consistent with longstanding First Amendment precedent that a criminal libel conviction can be sustained on mere recklessness without intent, because an ordinary citizen has a duty to take care not to harm others’ reputations.

      And I think the speech, even if one pretends it was only the speech and flat out ignores what happened before or after, can fairly be characterized as reckless.

      I think trying to find specific words is silly. The relevant questions are whether (a) he roused his followers to fight, i.e. to attack the Capitol, and (b) whether he did so recklessly, i.e. he should have known that his words and actions would tend to have this effect. (a) is indisputable. It happened. And I think there is a very good argument that an ordinary, prudent person would know that what he said and did would likely induce the reaction that occured. Hundreds of people attempted to storm the capital. The idea that it was just a few isolated people acting on their own is ludicrous.

      People are roused to fight by an overall tone and a totality of experience, not by a single specific isolated sentence.

      1. What are your thoughts that Brandenburg does not apply in every detail (or perhaps in a modified version) in an impeachment trial, where the result is only removal or disqualification (or both)?

        If Brandenburg were a policeman, could he have been fired for what he did, even if not criminally prosecuted?

        1. I think a lesser standard applies than for an ordinary citizen because a President has a duty to keep the peace, protect the Capitol, etc. But I think this is consistent with standard First Amendment precedent, not a departure from it.

          An ordinary citizen can be convicted of criminal libel based on recklessness, without having to prove intent, because ordinary people have a duty to take care not to harm others’ reputations. I think the situation here is a relatively straightforward analogy to that, and hence falls within established First Amendment jurisprudence.

          And as I mentioned above, even if you discount the evidence of intent, I think the evidence that President Trump acted recklessly is pretty solid. He knew or should have known that his behavior would tend to have the effect it did.

          1. This is a slightly lesser standard than Beandenburg. Brandenburg requires the speech to be “directed to inciting or producing imminent lawless action.” Here, it need merely (a) tend to, and (b) recklessly.

            That’s a somewhat lesser standard of causality and scienter than under Brandenburg.

            I think a policeman could likely be fired for leading a Klux Klux Klan rally of the sort Brandenburg les under standard First Anendment precendent for firing government employees.

            But I think the “Treason, bribery, or other high crimes and misdemeanors” standard requires more than is required for just firing an employee. It requires conduct the First Amendment permits to be criminalized.

            And as explained above, I think that standard is met in Trump’s case.

            One needn’t resolve every hypothetical to be able to address the case at hand. In Trump’s case there really was imminent lawless action: that action was causally connected to Trump’s speech and behavior; and in causing it, Trump behaved ar least recklessly and there is evidence he behaved intentionally. That’s enough to resolve the case.

            1. But I think the “Treason, bribery, or other high crimes and misdemeanors” standard requires more than is required for just firing an employee. It requires conduct the First Amendment permits to be criminalized.

              I think this is 180° backwards. Ordinarily, the higher up the chain we go, the less the 1A protects the jobs of government employees: a janitor at the police station, a cop, the chief of police.

              Every single member of the president’s cabinet can be fired for his speech, no matter how lawful, based solely on the whim of one person. But 1/2 of the House and 2/3 of the Senate can’t remove that one person from his job unless he has committed a crime with his speech?

              1. As I inidicated in my comments, I don’t think the Brandenburg rule applies exactly as in a criminal case.

                But an elected official is not the same as a cabinet member.

                The latter serves at the president’s pleasure, and is meant to aid him in executing the law, in a manner the president sees fit. If that person’s speech indicates he or she won’t do that, then that is a legitimate reason to fire him/her. For such an office, a policy difference with the president suffices.

                Disqualifying someone from elected office is a different animal. You are saying that person has so abused the public trust, that the electorate cannot be allowed to re-elect him. Even if they agree with his policies and personality. For that, a mere policy difference with Congress should not suffice.

                1. Disqualifying someone from elected office is a different animal. You are saying that person has so abused the public trust, that the electorate cannot be allowed to re-elect him.

                  But you’re focusing on this rare subcase in which disqualification is the primary objective. Generally impeachment is about removal from office. (There aren’t two different 1A standards applicable here, one for removal and one for disqualification; either the 1A protects the president from conviction by the senate or it doesn’t.)

                  You’re also biasing the issue by saying “policy differences.” But the 1A doesn’t protect cabinet members’ jobs at all. They can be constitutionally fired for speech based on — as I said — pure whim.

                  1. (1) Not sure why you think there is a distinction between removal and disqualification. I don’t think that Congress can impeach the President on a mere policy difference, either. And removal has the same anti-democratic problem as disqualification does. The voter’s choice is being overriden. That requires more than a policy difference, or some rude speech.

                    (2) Not sure how I am “biasing” anything. Cabinet members by definition are extensions of the president, and serve in the Executive Branch headed by the president. He can fire them on a whim, whether that is because of wearing their tie crooked, or making him look bad in a speech.

                    Compare this to the distinction made in Elrod v. Burns, 427 U.S. 347 (1976) between policy-making positions and non-policy making positions, the latter of which enjoy more first amendment rights than the former. Cabinet positions clearly fit into the first category.

                    The president, OTOH, is elected. So again, you need something more than disagreement with his speech to remove him. Which is why the Constitution requires “High Crimes and Misdemeanors,” which is more than simply policy disagreement.

                    1. (1) Removal is not anti-democratic.

                      (2) Yes, we agree that non-policy-making positions enjoy more first amendment rights than policy-making positions. That was precisely my point: the president is the ultimate policy-making position. And thus has the fewest first amendment rights in his job.

                      Whether the president should be removed for policy disagreement (I agree that he should not be) is not a first amendment argument.

      2. “Several folks have asked why I think President Trump’s conduct satisfies Brandenburg.”

        It doesn’t have to. Brandenburg is criminal law. If they decide to charge Trump in criminal court, then they have to overcome Brandenburg. Until then, they do not.

  16. And in other news there is endless analysis on how many angles can dance on the head of a pin.

    Wish I had a nickel for every time I have asked the names of the 17 pubs who would vote to convict. Wish I had a penny for every one who is too embarrassed to answer the question.

    1. And in other news there is endless analysis on how many angles can dance on the head of a pin.

      I think that depends on whether they’re acute, obtuse or right angles.

        1. I think you got his point.

    1. Who you gonna believe . . . some guy named Kalt or the Trump Litigation Elite Strike Force?

  17. Justicability will be a hard sell because of the standards involved: it’s a question textually committed to another branch, and one not easily susceptible of resolution according to the legal canons of interpretation. It would seem to make sense for the Democrats to split jurisdiction off in a vote addressed to the underlying rules of the trial (legislative act), which would both further insulate it from any undue Marburying and possibly gain the vote or two from the small fraction of Senators doubting jurisdiction, but perhaps inclined to vote the other way once there’s a formal vote on the specific question of jurisdiction.

    Mr. D.

  18. Can one of the lawyers here explain something. Can you call it a trial if the crime victims are the judge and the jury?

    Not even in the Inquisition, in Soviet show trials, in Nazi courts, in Chinese Commie courts has that taken place?

    1. Yes. The Constitution calls it a trial. Amd it says the Senate has sole power to try impeachments.

      It’s well established that under the “rule of necessity,” recusal doesn’t apply when you are the only one able to do something. This sometimes happens in the courts. In situations where if everyone with an interest in the case recused themselves did so the case could not be heard (e.g. it would leave the court without a quorum), then interested judges have to hear the case nonetheless. See United States v. Will, 449 U.S. 200 (1980).

      1. If an uninvolved Chief Justice refuses to hear the case, isn’t it really dismissed?

        As a Trump voter, I only see an attempt to prevent Trump from running again. After the suffering under Biden, he will win easily in 2024. This is not a legal proceeding. It is an election tactic.

        1. “If an uninvolved Chief Justice refuses to hear the case, isn’t it really dismissed?”

          For fuck’s sake dude. I’m quite sure they have copies of the US Constitution available in Moscow for you to buy.

          The Chief Justice doesn’t “hear” an impeachment case. They preside over it, but do not issue the judgment.

          And to answer your question: No. As usual you have no idea what you’re talking about.

          1. OK, if you want to nitpick language with no difference. A judge refuses to “preside” over a case, isn’t it dismissed? He does not want the opprobirum of an invalid tribunal.

            1. HAhaha. No. If a judge doesn’t want to preside over a case, a different judge is selected to preside over it.

        2. A fundamental assumption of Team Trump is that laws that apply to ordinary mortals simply do not apply to the Donald.

          1. Jason. I sympathize with your frustration. But, I am not its cause. The facts and the plain language of the constitution are.

            The case cited to justify a jury of the direct crime victims involved a lawsuit for a cost of living increase for the salaries of judges. It amounted to less than $10000. It fails to address the criminal trial of impeachment. That trial may result in a sever punishment, disqualification to run for Preident. Most ordinary people would agree that is a worse punishment than 30 days in jail. It therefore should have the protections of a criminal trial, due to its severe punitive outcomes.

            Criminal trials are governed by the Fifth Amendment procedural due process right to a fair hearing. Should crime victims be sitting as a judge and as jurors in their own victimization case? They are also impaired by their PTSD. Irremediable conflict of interest. Deranged, obsessed, hate filled, scapegoating jurors, nuttier than a lynch mob.

            Trump will be acquitted due to the electoral distriubtion of the Senate, not due to adherence with the constitution. The lawyers here are unable to understand high school level civics.

            1. The House Managers have announced the pursuit of a criminal trial in this impeachment.

              1. Cool. If there’s a criminal trial, it’ll come after the impeachment is done

            2. “Criminal trials are governed by the Fifth Amendment procedural due process right to a fair hearing.”

              Indeed. and if and when there is a criminal trial for Mr. Trump, those procedural due process rights will be followed.

          2. James, the opposite is true. I am asking for adherence with the plain high school level reading of the constitution. Stop the lawyer fictitious propaganda.

            1. Now, if only you were capable of high-school-level reading.

    2. Impeachment trials (which more properly are called Removal and Disqualification Trials) are a unique animal created by the Constitution. It has some aspects of a criminal trial, some of a civil trial, and some of a political decision by a legislative body.

      You cannot apply the usual rules of a criminal trial.

      The “victim” here is the People of the United States, not individual Senators or the Chief Justice. What they are determining is whether someone abused his office sufficiently to remove and/or disqualify him.

      The Constitution, for better or worse, set it up that the House Impeaches and the Senate tries. Hamilton thought that the Senate was a better candidate than the Supreme Court. In light of experience, you can doubt the wisdom of that, but until we amend the Constitution, we are stuck with it.

      1. The House Managers have announced the pursuit of a criminal trial. Your statement applies to all criminal trials. The plaintiff is the people. Yet, the mugging victim may not sit as a juror, nor certainly, never as the judge. How about the disgruntled wife making allegations of physical abuse by her husband? Can she serve on the jury or on the bench as the judge of her hated husband?

        Nothing is stupider than the American lawyer. If we made kids in Life Skills class, learning to eat with a spoon, Justices of the Supreme Court, there would be an immediate upgrade in the logic of the decisions, and in the clarity of the writing.

        1. The House managers have announced no such thing. The ONLY possible result of this proceeding is that Trump will be disqualified from federal office. So it is not a criminal trial, period. They can announce that the moon is made of green cheese, but that does not make it so.

          It is true that the criminal trials are captioned People of ___ or State of ____ vs. Defendant. And in many cases, there is a specific victim. But not every criminal violation has a victim. If someone cheats on his taxes and is prosecuted from tax fraud, there is no “victim” other than the United States. The fact that everyone on the jury pays taxes, and the judge and prosecutor’s salaries are paid out of those taxes, does not disqualify them from anything.

          Try to think through what you are saying . According to you, no one can every be removed from office for anything, because every Senator is a “victim.” The President can take a bribe, commit treason, and you will say, sorry, the Senate cannot try him. That is not what the Constitution contemplates.

      2. I don’t see the objection as frivolous. This 1986 manual on provedures and guidelines for Senate trials discusses disqualification of senators and senators excusing themselves. It seems to contemplate the possibility that if a senator was an involved party, a witness or similar, they would excuse themselves, and if they didn’t the senate could vote to disqualify them. (It discusses the two past votes to disqualify senators agaijst their will, both of which failed.)

        So the idea that a senator who’s a witness or a victim should ordinarily recuse themselves seems to be a reasonable argument and consistent with the guidelines.

        However, assuming this argument ordinarily holds for individual senators, when a large part of the senate is involved – and the whole senate was in session when the attack came – there could be no trial if everyone involved recused themselves, and the Rule of Necessity applies.

        Here again, I think that rather then claiming that the Senate is exempt from ordinary traditional principals of fairness and resting on that, it would be better to accept them and see if it might be possible to work within them. The Rule of Necessity is one of those traditional common-law principals, and it applies here.

          1. I don’t see the objection as frivolous. This 1986 manual on provedures and guidelines for Senate trials discusses disqualification of senators and senators excusing themselves. It seems to contemplate the possibility that if a senator was an involved party, a witness or similar, they would excuse themselves, and if they didn’t the senate could vote to disqualify them.

            I mean, that’s not even remotely what that manual says, and it’s of course not the operative senate rules anyway.

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