Impeachment

Trump's Attorneys Misrepresent Kalt's Scholarship on Late Impeachments

The former President's attorneys repeatedly (mis)cite the work of Professor Brian Kalt on late impeachments.

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One of the primary arguments made in defense of Donald Trump in anticipation of and during the first day of the second Trump impeachment trial is that it is unconstitutional for the Senate to conduct such a trial after Trump has left office. This position has garnered the support of an overwhelming majority of Senate Republicans and has convinced some commentators as well, even if it is widely rejected by constitutional attorneys and legal scholars across the spectrum.

In making the argument against so-called late impeachments, the Trump defense brief repeatedly cites the work of Professor Brian Kalt on the impeachment of former federal officials. This makes sense because Professor Kalt is the foremost scholar in this area, having written what is widely regarded as the definitive treatment of the subject. The only problem is that the brief misrepresents Professor Kalt's work.

Writing in Slate, Professor Kalt details how Trump's attorneys mangle and distort his work.

Trump's lawyers focused their attention on the parts of my article that favored their side, and not the parts—including my overall conclusions—that favored late impeachability. Fair enough—their job is to advocate for Trump, not for me. But as I looked more closely at just how they depicted my work, it was clear that there was a problem.

In several places, they cited me as though I had concluded something when in fact I had concluded the opposite. For instance, they said:

The only purpose of impeachment is to remove the President, Vice-President, and civil officers from office. When a President is no longer in office, the objective of an impeachment ceases. (Kalt at 66.)

So what did I say on Page 66? In that section, I looked at some different ways to interpret the constitutional text. One such way, which I called "Interpretation #3," was consistent with what Trump's lawyers were citing me for. But after summing up Interpretation #3, I denigrated it, saying that it had "deep flaws." More to the point, one of its flaws was that removal "is not the sole end of impeachment." In other words, I said the exact opposite of the proposition for which they cited me.

This is not an isolated example. Professor Kalt goes on to give several others, demonstrating that this is not a case of an overzealous advocate making a small error in the course of drafting a brief on a tight deadline. It rather appears as a sloppily scurrilous effort to create a false narrative about the relevant legal scholarship.

One more example from Kalt's Slate essay helps make the point. In their brief, Trump's defense team writes:

One legal scholar described the simplicity of Article II's limitation, which House Managers try in vain to make seem inscrutable, in this way: "A half-grown boy reads in a newspaper that the President occupies the White House; if he would understand from that that all Ex-Presidents are in it together he would be considered a very unpromising lad." (Brian C. Kalt, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment, 6 Tex. Rev. L. & Pol. 13, 20 (2001).)

Kalt comments:

That's a great, colorful quotation, and I get why they included it. But I never said it. My article did quote the 19th century lawyer who actually said this line, as part of what I called the simple argument against late impeachment. But remember, my article was 124 pages long. If you want to quote me, quote anywhere from the section of the article on why that 19th century lawyer was wrong. Cite me, without a signal, for my argument about how the text is indeed inscrutable. (Several pages later, in a footnote, Trump's lawyers used the same quote again, this time properly attributing it to Jeremiah Black. Black was a lawyer in the 1876 case of ex–Secretary of War William Belknap, in which the Senate voted 37–29 against Black's arguments and in favor of jurisdiction).

It is understandable why Donald Trump's defenders would rather make technical constitutional arguments about the limits of the Senate's authority than try to defend Trump's conduct on the merits, but there is no excuse for such sloppy and dishonest work as contained in their briefing to the Senate.

NEXT: Today in Supreme Court History: February 10, 1967

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  1. I got a great idea for law professors who don’t want to be misrepresented in impeachment trials: stop writing articles about impeachment as if it is a legal process. It’s a political process, and as long as the Senate permits it, anyone can lie about your arguments on the Senate floor and nobody’s going to stop them.

    This is a law professor experiencing a completely foreseeable result after insisting he should have some special influence on a political process that the law is irrelevant to.

      1. Oh stop posting this link to Federalist claptrap.

        1. In fairness, it’s a step up from just making stuff up himself.

        2. How’s it claptrap? Seems fully accurate after reading the first half or so. I’m not a big fan of The Federalist generally, and have rarely read even a single article in full, even though I am in line with their general political slant.

          Election processes in key swing state cities were funded and dictated by Mark Zuckerberg’s $400 million dollars and grant agreements, among others. Election processes were radically changed across the board, to a large degree without legislation, all to rig the election under the pretext of coronavirus, even though there was not a scintilla of scientific evidence supporting this (the CDC and “the science” said voting in person was fine). A short time ago, the New York Times and everyone else admitted and agreed that mail ballots are more susceptible to fraud, error, bias, coercion, inducement, etc but then they tried to memory hole this fact. Secure elections require voting to be in-person with an ID, as the Europeans well know and have well decided.

          1. Really, fully accurate?

            You’ve really thrown all critical reading to the winds. Not all funding and outreach is the same.

            The article is about a group that came together to make sure the integrity of the 2020 election was above reproach, regardless of what Trump insisted.

            The Federalist makes it look like this was a group that worked to stuff the ballot box. Which is fully a lie.

            Well within the Federalists’ usual crap, and indeed well within your own.

            Quit lying.

            1. The article is about a group that came together to make sure the integrity of the 2020 election was above reproach, regardless of what Trump insisted.

              LOL. “Your spin is nonsense. Mine is divine.”

            2. You are correct, but Time deliberately sensationalized the story for clickbait. Nobody reading the story could say that it was reporting a cabal to rig the election, but if one stopped after the headline, it could come across that way.

          2. A short time ago, the New York Times and everyone else admitted and agreed that mail ballots are more susceptible to fraud, error, bias, coercion, inducement, etc but then they tried to memory hole this fact.

            Let’s assume for the sake of argument that this is correct. Saying that VBM is not as secure as in person voting is not the same thing as saying that there actually was fraud.

            That you describe making it easier to vote as “rigging” the election says a lot about you, but nothing about the election.

          3. M L : “A short time ago, the New York Times and everyone else admitted and agreed that mail ballots are more susceptible to fraud, error, bias, coercion, inducement, etc but then they tried to memory hole this fact”

            True enough. They said mail ballots are slightly more susceptible to abuse than in-person voting. But they also said mail ballots share the same microscopic rates of fraud as voting in person. They quoted the statistics of a few dozen cases over decades of elections covering hundreds of millions of votes.

            It seems ML is trying to memory-hole that fact. It appears ML looks to bury the numbers that accompanied his sound bite. Perhaps ML doesn’t recall the humiliating failure of Trump’s voting fraud commission, who could find a jot more fraud than the miniscule amount already in the public record.

            Yep; someone is being dishonest here, but it’s our ML rather than the New York Times……

            1. (“couldn’t” not “could”. Wish we had an edit function)

      2. Read the freaking Time article, Ed.

    1. I mean, OK, but I also give the ones that lied some agency.

      They chose to be liars.

      1. Sure. But that’s because the process they are in is a political process, and political processes reward all sorts of lying.

        1. Most lie due to incentives.

          Doesn’t make it less shameful.

    2. First, even though it’s a political process, it is still governed by provisions in the constitution, so it makes sense to discuss how those provisions apply to the current case.

      Second, are you really saying that law professors shouldn’t write articles that might be misrepresented?

      It’s somehow Kalt’s fault that Trump’s lawyers are liars, not to mention bad lawyers? (I watched Castor’s presentation, and gave it up when he started talking about Everett Dirksen.)

      1. First, even though it’s a political process, it is still governed by provisions in the constitution

        To be clear, it’s governed by a provision of the Constititution that says politicians have the exclusive power to decide it. So no, there really isn’t a legal element in this.

        Second, are you really saying that law professors shouldn’t write articles that might be misrepresented?

        What I am saying is that if law professors make a choice to get out of their lane and try to tell politicians how to handle impeachments, this is one of the risks they run, because in politics lying is often necessary. It’s not the same thing as if a law professor writes an article about legal theory and someone misrepresents it in a court or a law review.

        1. “because in politics lying is often necessary”

          Bullshit. The political consequence of telling the truth may be inevitable, but it’s never necessary. Nobody holds a gun to anyone’s head and says, “be a politician and say only the things that help you win.”

          Lying is always a choice. I can’t believe you’re justifying it.

          1. Can’t speak for Dilan’s motives, but I read that more as demonstrating why non-lying politicians don’t exist, not as justifying the liars. You yourself explain:

            > The political consequence of telling the truth may be inevitable

            The inevitable outcome is a population of lying pols.

    3. Sure thing Dilan!

      Prof. Kalt should completely listen to you. He should get in a time machine and go back to 1999 and 2000, to make sure that he prevents himself from researching and publishing his seminal work in 2001 about impeachment.

      Because, you know, if he hadn’t done that, then Trump’s dishonest attorneys wouldn’t have used it TWENTY YEARS LATER.

      I mean, just think … if he hadn’t written that 20 years ago, Trump’s attorneys might have been forced to come up with different lies! Think of all the work that it would create.

      I honestly am beginning to think that you highjacked the name …

      1. He wrote those articles in the wake of the Clinton impeachment, which was ALSO not a legal matter.

        This is an area where law professors should have said “we have nothing to say here, it’s political”. But they don’t say that. They insist, over and over again, that they must be a part of this process. Lie down with dogs and you get fleas.

        1. So, your position is that law professors should not write academic articles about portions of the Constitution, and how they have been viewed during history?

          Wow. I mean, I expect people like Bob from Ohio to make truly stupid arguments while carrying water for Trump, but this is a new low.

          Yeah, in the end, a lot of things are political. It doesn’t mean that academics don’t write articles about it.

          And it is truly shocking that someone who is a practicing attorney is condoning other attorneys lying in a proceeding.

          1. Wow. I mean, I expect people like Bob from Ohio to make truly stupid arguments while carrying water for Trump, but this is a new low.

            I look forward to your scholarly work on how Richard Nixon became the first and only POTUS to have ever been impeached.

            1. Aw, you so funny and clever! Look at you, can’t even think of something substantive to say about your favorite hero and his lying minions.

              No wonder most people consider you to be sub-Ed. I’d write that you’re special ed, but that’s offensive to people with special needs, who have more integrity than you.

              1. He’s at below RAK levels of self-indulgence.
                Just empty insults that I presume amuse him, and add nothing to the conversation on either side.

                Really shameful.

                1. Since I took a break, maybe you know the answer to this Sarcastro-

                  What the heck happened to Dilan? I’m not joking or kidding; this is not, at all, the Dilan Esper I remember from the pre-Reason days.

                  1. I presume it’s the usual media diet imbalance slide into no longer even trying to look at counterveiling evidence.

                    But honestly, his legal analysis has always been wonky to me, even if his policy preferences used to be pretty normal.

                2. Just empty insults that I presume amuse him, and add nothing to the conversation on either side.

                  Really shameful.

                  Your response…in it’s entirety…to a post just a couple of hours ago:

                  Read the original source before you come in here with The Federalist’s lies, you narritivist twit.

                  You hypocritical sack of shit.

                  1. Do you see how I engaged with what he said, and explained how he was wrong?

                    You don’t do that; you generally just post an insult about the poster without worrying about the post.

                    You managed to clear that low bar this time. This is my faint praise.

                3. “and add nothing to the conversation on either side”

                  I wish there were some adult conversation — rather than repetitive partisan polemics that provoke a bunch of predictably racist, belligerently ignorant, content-free comments — at this blog.

                  1. Omitted the soundtrack for that one, cued at “repetitive partisan polemics.

                    Also works at “content-free.”

              2. Aw, you so funny and clever! Look at you, can’t even think of something substantive to say about your favorite hero and his lying minions.

                I can’t stand Trump, and have never supported him. Not surprisingly, you’re not even half as smart as you think you are.

                No wonder most people consider you…

                You can’t even recognize and come to grips with your own pathetic insecurities, but have deluded yourself into thinking you can read minds and are in a position to speak for the majority. Like I said, you’re going to keep some therapist very busy some day.

                …people with special needs, who have more integrity than you.

                I find it endlessly fascinating that a pathologically dishonest asshole like you…who keeps falling into fits of impotent rage just to avoid acknowledging that he said something stupid so he can try to save his made-of-glass ego and continue hypocritically castigating others for their ignorance of history…feels qualified to lecture others on integrity. That coupled with your constant need to virtue signal in a vain attempt to convince yourself that you’re something better than the vile piece of shit you know yourself to be are the stuff of psychology textbooks.

                1. “I find it endlessly fascinating that a pathologically dishonest asshole”

                  Looking in a mirror again!

                  It’s funny, isn’t it, that I noticed the same thing everyone else does about you?

                  “Just empty insults that I presume amuse him”

                  HA! You’re such a tool.

                  1. “Just empty insults that I presume amuse him”

                    HA! You’re such a tool.

                    You’re so deep in your blind rage you’re even turning on your partner-in-bullshit Sacastr0. IT would be amusing were it not so pathetic.

                    1. Aw! Still trying, yet missing.

                      See, the difference is that some people are actually able to occasionally contribute useful stuff.

                      Some aren’t.

                      In other words, I might be an asshole some of the time. You .. you’re an asshole ALL OF THE TIME. Which is why no one ever talks to you about anything important, and you’re left impotently raging and insulting people and wondering why they are laughing at you.

                    2. Get a room you two crazy kids.

    4. “I got a great idea for law professors who don’t want to be misrepresented in impeachment trials: stop writing articles about impeachment as if it is a legal process. It’s a political process, and as long as the Senate permits it, anyone can lie about your arguments on the Senate floor and nobody’s going to stop them.”

      Kalt gets to write articles. People defending Trump get to lie about them. Kalt gets to comment with respect to the liars and lies.

      Trump fans seem to be having a hard time following that last part. Of course, they didn’t get to be Trump fans with good judgment and sound education.

    5. And if President Trump had succeeded, the law would be irrelevant to elections.

      If “I can get away with it” is equivalent to “it’s OK to do it,” then all doors are open. If Trump had succeeded in appointing compliant enough generals, he could simply have declared martial law, had the Supreme Court justices arrested or assassinated, and dispensed with the whole elections business.

      There is absolutely no reason why law has to have anything to do with anything. We pay attention to law, any attention at all, only because we or most of us agree to it. If we didn’t, it wouldn’t and needn’t have any relevance at all to anything.

      The Senate is no different in this respect than any other institution, and Senators are no different from the rest of us.

      1. For most of us, whether what we do is subject to teview or not depends on whether someone is watching or how well we conceal it.

        If the principle that that which is undeviewable is not subject to law holds, then there’s nothing illegal aboit murder as lokg as you can get away with it. It’s only illegal if you’re caught. If you don’t get caught, it’s no more subject to review than what the Senate dies when it conducts an impeachment.

        A fundamental basis of our society is that we are a guilt-based society, not a shame-based one. What is wrong remains wrong even if no-one is looking, and even if we know we can get away with it with impunity.

        1. “A fundamental basis of our society is that we are a guilt-based society, not a shame-based one. What is wrong remains wrong even if no-one is looking, and even if we know we can get away with it with impunity.”

          Agreed. And well said.

        2. “Political” does not mean unreviewable. If you can convince enough Republicans to go along with an impeachment, a conviction can happen. Just like if the Republicans could convince enough Democrats to go along with an impeachment of Clinton.

          The frustration people have is that this is a deliberately high threshold. The Constitution reserves impeachments for situations where the various factions are so outraged they all agree. Like it or not, people don’t all agree about the impeachments we have had so far. The closest we came was Nixon, who might have been convicted had he not resigned. But that’s a political problem, not a legal problem.

        3. “There is no controlling legal authority that says this was in violation of law.”
          — Al Gore, seven times (in one form or another), White House news conference, March 3

      2. “If Trump had succeeded in appointing compliant enough generals, he could simply have declared martial law, had the Supreme Court justices arrested or assassinated, and dispensed with the whole elections business.”

        If he had all the Infinity Stones, he could have just killed all the Biden electors.

        1. Bob from Ohio : “If he had all the Infinity Stones, he could have just killed all the Biden electors”

          Are you sure? It’s just as likely he would have gotten distracted and accidently destroyed the stones or himself. Don’t forget; Trump has the attention span of newt.

          Also, you don’t have to go to Marvel Comics to find a former National Security Adviser & current Cult heartthrob who called for martial law and an election redo by military force. This “idea” was discussed in a meeting which included Flynn & Trump, but mercifully didn’t garner majority support. Thank God for small miracles, eh?

          https://abcnews.go.com/Politics/trump-entertains-desperate-schemes-overturn-election/story?id=74845068

          1. “according to sources familiar with the meeting.”

            Imaginary sources I’d wager.

            There was no coup, no martial law, no nothing but a speech and some over enthusiastic mostly peaceful protestors.

            1. Bob from Ohio : “There was no coup, no martial law, no nothing but a speech and some over enthusiastic mostly peaceful protestors”

              Flynn made multiple calls for martial law in public, and THEN was invited by Trump to attend the strategy meeting on stealing the election, so I’m not sure what you’re trying to deny.

              But addressing your statement above : It wasn’t just one speech, as you well know. Trump began prepping his dupe supporters months before the election took place : He would claim fraud if he lost.

              After the election he spent two months telling a continuous string of incendiary lies about a stolen election, shadowy conspiratorial forces and the downfall of the nation. Given the gullibility common inside Trump’s cult, violence was inevitable after such a volume of virulent bullshit.

              And what about telling the Georgia governor how many “new” Trump votes to produce after the state certified their results? What about the pressure on state officials in Michigan and Arizona? What about asking the Justice Dpt. head to send a letter to Georgia demanding they back-off certification because of a DOJ election fraud investigation that never existed? What about Trump’s demand Pence stop certification by a clearly unconstitutional act? What about Trump siccing a vicious mob after Pence after he refused?

              Don’t you care about any of that, Bob?

                1. Then why bother following politics and law at all? You’ve decided that you are the ultimate authority in all things, so go be alone with your superior thoughts.

                  1. “Then why bother following politics and law at all?”

                    Its entertainment.

                    1. “Its entertainment.”

                      ….. well played.

                    2. Bob from Ohio : Its entertainment.

                      Sincere thanks, Bob. For years I’ve been saying the MAGA crowd only wanted entertainment from the reality-TV show buffoon they helped elect president. All the talk about an “unconventional politician” or “clearing the swamp” was just an empty sham.

                      Today’s Right grew from the cartoon reality entertainment of talk radio. It developed from the cartoon reality entertainment of Fox News. So why accept less amusement from the politicians themselves? All they ever wanted was a steady supply of yuks. Trump just had the low cunning to sense his audience’s demand.

              1. “Don’t you care about any of that, Bob?”

                He cares that it failed. Because if it had worked, think of those sweet liberal tears complaining about Trump!

                Otherwise, naw. Because since it didn’t work, it didn’t happen. You and your silly evidence. Stop taking Trump literally, or seriously, or something.

            2. “no nothing but a speech and some over enthusiastic mostly peaceful protestors”

              This statement indicates why you will spend the rest of your substandard life in Can’t-Keep-Up, Ohio, doing as better Americans from better communities prescribe, Bob from Ohio — because those people are just better than you and your fellow clingers.

    6. “Kalt is the foremost scholar in this area”

      I guess he gets paid for wasting his time. Good for him.

      Otherwise, no one who doesn’t already hate Trump cares.

      1. Bob from Ohio : “…no one who doesn’t already hate Trump cares”

        Yep, people who hate Trump are such sticklers for non-stop lying, attempts to sabotage a presidential election, and using a rioting mob to disrupt its certification ( not to mention howling for poor Mike Pence’s blood).

        Why are Trump haters so persnickety about trifles like that?

        1. Go look at Reason articles over the last two days on the impeachment. The Trumpies are bragging to each other about how little of it they read. They are boasting of their ignorance, and see nothing wrong with it.

          Whenever you think they can’t sink lower, they do.

    7. as if it is a legal process. It’s a political process,

      It’s a legal process. It’s not a judicial process.

      1. Actually an impeachment trial is a judicial process as well as a legal process. But the judicial branch does not adjudicate it.
        I agree with you that the questions on which Kalt has written concern matters of constitutional interpretation, which are indisputably legal in nature. The fact that those questions are resolved by the Senate does not alter that fact.

    8. The argument that the Democrats are treating the impeachment process as a purely political process entirely without law, with no rights for the accused, no concept of a fair trial, and no limits on the reasons they can disqualify him – any reason or no reason, it’s all just politics – all this is Mr. Trump’s and the defense’s best possible argument.

      The more people argue that they CAN do these things, the bigger the impression they create that they ARE doing it. And this is precisely the defense’s position an what rhe defense wants people to think. If it’s true, then frankly the defense is right. If you believe it, you ought to acquit.

      The House managers would do much better to proceed differently and instead argue that:

      1. Mr. Trump indeed has rights, but the impeachment and trial do not violate them.
      2. The trial indeed has to be fair, but they are being careful to make sure that this one is.
      3. An impeachment trial cannot and should not be done out of pure politics. And they need to explain, clearly and carefully, why this one isn’t. Trump’s conduct was criminal in nature, and this and not any political disagreement or partisan stratagem is the sole reason for the proceedings.

      America is dedicated to the rule of law. The idea that law has no place in the proceedings of government may work in and be appropriate for an authoritarian state, where men and not laws rule. But it is not and should not be what a constitutional republic stands for. In our republic, dedicated to the rule of laws, not men, law is and should be sovereign.

      The fundamental thing Trump is accused of is attempting to overthrow the rule of law. Any sensible prosecution ought to show dedication to the rule of law, ought to emphasize it, ought to try to make it the whole basis of their proceedings. It ought to make clear the contrast between Trump’s behavior, on the one hand, and how people who take the rule of law seriously behave.

      Claiming they are exempt from the rule of law and can proceed however they wish and for any reason or no reason is no way to do that.

      Let the defense be the ones to claim the prosecution is ridiculing the law professors and is behaving as if law has no place in their proceedings. No-one who supports the prosecution ought to be doing that.

  2. Of course they lied, look who they are representing.

    And as one late night host said about Rudy’s comments on the Trump opening statements by his attorneys, “These guys are good”

  3. Pot meet kettle

    The OP said: “It is understandable why Donald Trump’s defenders would rather make technical constitutional arguments about the limits of the Senate’s authority than try to defend Trump’s conduct on the merits, but there is no excuse for such sloppy and dishonest work as contained in their briefing to the Senate.”

    As if one cannot do both, and Trump’s defenders have not done both. If you re looking for the truth you will not find it in a false dichotomy.

    I do not defend taking Kalt’s scholarship out of context. But the OP is no better.

    Both sides are of course arguing the constitutionality of late impeachments.

  4. The Senate trial is a political tactic to prevent Trump from running and winning in 2024. The voters will endure untold agonies under the Biden administration, and will deserve them. They will vote him out.

  5. As I have previously posted Ruth Ginsburg said the US Constitution is not the best model to follow, the South African Constitution is better. The thing is the men implementing the US Constitution did a much better job than the men implementing the South African Constitution.

    There is little doubt the second Trump impeachment is a silly joke that will never get 67 votes to convict and everyone with an IQ above room temperature knew this from the get to.

    As I have posted before the US Constitution requires the CJ to preside over the Senate’s trial of a prez. Problem is it does not say anything about who should preside over the impeachment trial of an ex president; probably because the main purpose of impeachment is to remove someone from office and once they are out of office they are already removed.

    One would suspect the reason the CJ is to preside is because the CJ is suppose to lack bias. Putting a hack pol like Leahy who is inherently bias in the position to preside shows just what a sham this trial is.

    Even worse if allowed to stand it provides an incentive to avoid having an unbiased CJ preside over the trial and allow a hack pol to preside. All political opponents would have to do is time the impeachment trial till after someone is out of office and get to pick a sham presiding officer for the trial. I doubt anyone would claim the founding fathers had this in mind when writing the Constitution.

    I would posit anyone defending not having the CJ preside is misrepresenting what the founding fathers had in mind when writing the constitution.

    1. Wanted to say “get go”, not “get to”.

    2. “Probably…One would suspect”

      Yeah, if you beg the question it makes supporting your thesis easy.

      A good way to test is to ask why you included such provisos, and see what happens if someone just denies they are true.

      In your case, you included them because the statements they modify lack support, but your argument depends on them being true.

      Consider why you are so sure of an argument that has such fundamental unsupported holes in it. Maybe the holes are supported, and you just need to better articulate the support. Or maybe you love the outcome too much to look too carefully at your line of reasoning.

    3. Even worse if allowed to stand it provides an incentive to avoid having an unbiased CJ preside over the trial and allow a hack pol to preside. All political opponents would have to do is time the impeachment trial till after someone is out of office and get to pick a sham presiding officer for the trial. I doubt anyone would claim the founding fathers had this in mind when writing the Constitution.

      Congress did not strategically schedule this trial so that Roberts wouldn’t preside. (I suspect that if Roberts had said he would preside, the Senate would not have objected.) Indeed, it was the GOP that refused to allow this trial to start until after Trump had stepped down.

      Also don’t know why you are pretending that this is such a big deal. The CJ, or his replacement, is not acting as a judge when presiding over the trial; he isn’t making binding rulings on anything. Discussing whether the presiding officer is “biased” is a category error in discussing impeachment; the actual people deciding the outcome are almost certainly “biased,” and that’s exactly what the founding fathers had in mind.

      1. You really missed the whole point of my post, and a previous post on the matter. Not to mention you are simply wrong on the facts and there is no way to sugar coat it.

        “Congress did not strategically schedule this trial so that Roberts wouldn’t preside. (I suspect that if Roberts had said he would preside, the Senate would not have objected.) Indeed, it was the GOP that refused to allow this trial to start until after Trump had stepped down.”

        The House dems were in control of when they transmitted the articles of impeachment to the Senate and that did not occur till after Trump was out of office. So you are simply wrong on the facts in saying the pubs controlled things; nothing could happen till Pelosi sent the articles of impeachment to the Senate and that did not occur till Trump was out of office. Roberts has not really been forthcoming about why he is not presiding but one of the reasons others have given is the Constitution says the CJ presides over the impeachment trial of a prez but Trump was no longer a prez.

        The example I used was that if Biden gave China the US Navy plans to how it would react to an attack by China on US Navy ships in the South China Sea in return for his son Hunter getting a hundred billion dollars from the Chi Coms after he was defeated by Trump in the 2024 election and two weeks before his term ended the House would have impeached him before high noon the next day and the Senate would have convicted him that afternoon.

        The house knew the Senate was in recess and not scheduled to start up again till after Biden’s term officially started (I know there was some housekeeping technically keeping the Senate but not doing anything real). Problem was the impeachment had no significant support from the pubs and there was no realistic way to get 67 votes in the Senate. Since the outcome of the Senate trial was already baked in there was no reason to rush things. There was also some speculation the pubs would have been better off rushing things so they would be in the majority until the new senators were sworn in.

        I have little doubt the dems would have been over joyed if Roberts was presiding as it would have lent at least some street cred to the trial but he was clear from the get go he did not want to be part of it.

        While the Senate can over ride any decision by a presiding officer doing so would show just how biased their action in doing that would be. I do agree impeachment is a political process with bias on both sides. I also agree the founding fathers understood this.

        What you seem to be missing is the founding fathers also set the bar for impeachment conviction very high; so high in fact that no prez has ever been convicted by the senate and the smart money is that Trump will not be convicted either.

        My biggest concern is that impeachment is becoming more frequent even if there is no real chance of conviction and there now seems to be a road map to use it as a political weapon rather than to get rid of a really bad prez.

        1. The House dems were in control of when they transmitted the articles of impeachment to the Senate and that did not occur till after Trump was out of office. So you are simply wrong on the facts in saying the pubs controlled things; nothing could happen till Pelosi sent the articles of impeachment to the Senate and that did not occur till Trump was out of office.

          The senate was out, and McConnell (who was still in control of the body at the time) said that they weren’t coming back before. If McConnell had said, “We’re rushing back right now to start the trial,” the articles would’ve been sent over that day.

      2. David, did you see what happened to shit eating Leahy after his ruling concerning Lee? Maybe more to the point did you see how Schumer slapped Leahy down over the ruling and took Lee’s side and forced the token black female non voting prosecutor to back peddle and correct/remove from the record her misrepresentation of what Lee said once it became obvious she was full of shit.

        I am convinced CJ Roberts would not have made a fool of himself like Leahy did.

        1. That didn’t happen, and it’s telling that in misdescribing events, you felt the need to replace the actual actor, David Cicilline — a white male — with someone you could demonize as a “token black female” who you couldn’t even bother to name. (Hint: Stacey Plaskett.)

  6. Kalt’s dubious assessment of Federalist 39:

    From Fed 39:
    On comparing the Constitution planned by the convention with the standard here fixed, we perceive at once that it is, in the most rigid sense, conformable to it. The House of Representatives, like that of one branch at least of all the State legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people. The President is indirectly derived from the choice of the people, according to the example in most of the States. Even the judges, with all other officers of the Union, will, as in the several States, be the choice, though a remote choice, of the people themselves, the duration of the appointments is equally conformable to the republican standard, and to the model of State constitutions The House of Representatives is periodically elective, as in all the States; and for the period of two years, as in the State of South Carolina. The Senate is elective, for the period of six years; which is but one year more than the period of the Senate of Maryland, and but two more than that of the Senates of New York and Virginia. The President is to continue in office for the period of four years; as in New York and Delaware, the chief magistrate is elected for three years, and in South Carolina for two years. In the other States the election is annual. In several of the States, however, no constitutional provision is made for the impeachment of the chief magistrate. And in Delaware and Virginia he is not impeachable till out of office. The President of the United States is impeachable at any time during his continuance in office. The tenure by which the judges are to hold their places, is, as it unquestionably ought to be, that of good behavior. The tenure of the ministerial offices generally, will be a subject of legal regulation, conformably to the reason of the case and the example of the State constitutions”

    Kalt says that ” Madison was not speaking of the limits of the federal impeachment power; rather, he was speaking of its expansion. Unlike certain states where the governor cannot be impeached at all or can only be impeached after he leaves, Madison explained, the President can be impeached while he is in office.”

    However Madison is simply stating the power of impeachment in the various states and in the federal government. In context Fed 39 concerns the republican nature of the federal government as well as the state governments. In context the paragraph in question regards how the various executives, judges, and other officers are chosen and the limits of their terms in office. It is list of factual data that may very well invite comparison, but Kalt’s claim that Madison’s description (above) of the power of impeachment in the proposed federal government is some sort of “expansion” over the aforementioned state powers is a baseless assertion.

    Madison’s point in reciting the many facts in that paragraph and in all of Fed 39 is to show the republican nature of the proposed federal government in its similarity to the various state governments. Note that the key sentence does not begin with with “In addition to the power conferred by DE and VA, The President… ” Instead it is a simple statement of fact, like the many other facts listed in that article. There is nothing to indicate that Madison considers the federal power of impeachment to be greater than that simple statement.

    1. Weirdly, the correct thing to do when you DISAGREE with someone is to state what they said, and then explain why you disagree with them.

      Do you know what most people don’t do?

      Quote them as agreeing with you.

      Then again, most people don’t support, or work for, Trump. So, they don’t have a strong incentive to lie.

      1. Most people who can read would realize that I do not agree with Kalt that Madison was indicating an expansion of the power of impeachment at the federal level vis-a-vis DE and VA.

        Kalt claims those who interpret the next sentence as other than an expansion of the power to impeach are taking it out of context. “The President of the United States is impeachable at any time during his continuance in office.”

        However there is nothing in Fed 39 to indicate that Madison thought the federal power to impeach was inclusive of the DE and VA power to impeach after leaving office. Kalt’s “in context” argument is not supported by the text of Fed 39.

        1. Very good!

          Now, read the OP, and think about what I wrote in that context.

          Do I really need to spell it out to you? Really? Like slowly like?

          1. Well I did state what kalt (the supposed foremost authority on late impeachments) said, and I did state plainly, twice now, where and why I disagreed with Kalt.

            So, pray tell, what are you going on about?

  7. Whiny law professor whines.

    Trump still not getting convicted.

    1. “Whiny law professor whines.”

      Losers whimpering. The Volokh Conspiracy.

  8. “Jurisdiction, is a dignity which a man hath by a power to doe Justice in causes of complaint made before him.”

    (Cowell, The Interpreter, 1607)

    The reality of the debate over jurisdiction in the present case is that a political force asserting jurisdiction is opposing the strict sense of the common lawyers, and this is part of a very old story. The Senator members of the High Court of Impeachment are asserting a jurisdiction that is not explicitly granted by the text, and this is peculiar, because the American presumption is that the legislative or constitutional text controls the jurisdiction of the judges (and the Senators are sitting as judges in a criminal trial here — that needs to be made plain), with the rest of the people’s business strictly left to the people.

    So, what’s going on?

    Bradin Cormack’s work on the emergence of jurisdiction in the early modern courts is revealing, and speaks for itself. (His book is available electronically, at least at NYPL.) Jurisdiction was on people’s minds then — an unknown playwright made it a central theme of his first big break, a gala holiday performance at an Inn of Court of a play about twins from different jurisdictions, a piece called “The Comedy of Errors.” Kantorwitz’s “The King’s Two Bodies” has been mentioned in the recent debates — that phrase is actually taken from a bit of Bracton that came up in a very significant early modern case in Coke’s Reports — “Calvin’s Case, or the Postnati.”

    (Quick breath, quick dive into the rabbit-hole coming.)

    James VI of Scotland acceded to the Crown of England in 1603, although the two nations would not be legally unified for years to come. The question of Calvin’s Case is a bit Hobbsian: What legal status did a person born in Scotland after the accession have within the English courts, based solely on the fact that they were a subject of the King of England at the time of their birth? Did two legal statuses inherent within the same person of the king remain distinct, or did they merge into a single legal personality capable of commanding allegiance to a single system of laws? That gobbet of Bracton was brought up, and it’s a powerful thought, so it held people’s imaginations. But the case was resolved on other grounds, as argued by Francis Bacon (he the subsequently-impeached).

    In short, the court held that (contrary to the nationalist faction in Parliament that feared an influx of criminal, bread-eating and bagpiping Scots from any political union, and that had blocked the Acts giving the Scots legal personality within the courts of England), a natural law was antecedent to the system of common law — that the artificial logic of the laws was sort of a “hieroglyph in the crown” of the sovereign. If natural law was antecedent to the system of laws, it could create legal relationships before the restrictions and jurisdictions of the common law even had time to operate. Parliament was then dominated by the common lawyers, and they made (very convincing) Bractonite arguments for mentally dividing things (such as the fellow with the big mace and the metal hat with shiny rocks), into distinct aspects. Instead, the court recognized an antecedent natural law — divine, and therefore greater than the Old French Norman devices for holding property and compelling taxes — and derived the jurisdiction of the courts from that natural relationship.

    This is the peculiarity of the present moment. The progressive daughters and sons of the English common lawyers are basically asserting a natural law jurisdiction against the strict terms of the texts. The person employed as the executive must be governed, given the tribunal’s responsibilities to protect an order of things, both international and domestic, that requires a lawful executive. In short, it is acting to protect those outside of its jurisdiction from the effects of that which would result from the strict adherence to the terms of its own hieroglyphs of laws. It is taking cognizance of the place of its own jurisdiction within the larger order of things.

    Which should probably give the common lawyers some pause.

    Mr. D.

    Calvin’s Case, or the Postnati: http://commonlii.org/uk/cases/EngR/1572/64.pdf

    A good article on it: https://uniset.ca/naty/maternity/9YJLH73.htm

  9. The Apostle Paul supported modern gender-fluidity theory. He wrote: “… there is no male or female…” (Galatians 3:28).

    1. Well played, sir. This is my favorite comment today.

  10. They do this all the time. With Darwin, they quote his line about how unlikely it is that a complex organ like the eye could have evolved in stepwise fashion:

    To suppose that the eye, with all its inimitable contrivances for adjusting the focus to different distances, for admitting different amounts of light, and for the correction of spherical and chromatic aberration, could have been formed by natural selection, seems, I freely confess, absurd in the highest possible degree.

    And ignore the bit which follows:

    Yet reason tells me, that if numerous gradations from a perfect and complex eye to one very imperfect and simple, each grade being useful to its possessor, can be shown to exist; if further, the eye does vary ever so slightly, and the variations be inherited, which is certainly the case; and if any variation or modification in the organ be ever useful to an animal under changing conditions of life, then the difficulty of believing that a perfect and complex eye could be formed by natural selection, though insuperable by our imagination, can hardly be considered real.

    And they do the same to Margaret Sanger and to Governor/Dr. Ralph Northam (D-Va).

    1. My favorite in this case is that — as David Frum pointed out — Trump’s defense counsel cited de Tocqueville in support of Trump. They quoted eight words from de Tocqueville. They got two of those eight words wrong. And they managed to cut off the sentence at the appropriate part to hide the fact that he was saying exactly the opposite of what they claimed.

      1. I missed that. Wow.

        Of course, Dr. Ed would just say that he met de Tocqueville in Maine, and he’s sure he said what Trump’s counsel quoted him as saying.

        Dilan would say that de Tocqueville should never have said anything, because when you speak, you’re just asking for people associated with Trump to lie about you.

        Bob would say facts don’t matter, and de Tocqueville was probably a commie in addition to being a known Frenchie.

        And WuzYoungOnceToo wouldn’t know who de Tocqueville was, but would just reply to you to say that he was busy having sex with your mother (because he fantasizes about sleeping with octogenarians).

        1. Yeah. Here’s what de Tocqueville wrote:

          The main object of the political jurisdiction which obtains in the United States is, therefore, to deprive the ill-disposed citizen of an authority which he has used amiss, and to prevent him from ever acquiring it again.

          Emphasis, of course, added. Now, here’s what the Trump team quoted, in a section of their brief entitled “The Text And Structure Of The Articles Discussing Impeachment Do Not Grant To the Senate the Authority Over A Former President”:

          As is evident from our Constitution’s plain text, Article II limits impeachment to current officials: “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.” As Alexis de Tocqueville wrote, impeachment was designed to deprive a political actor “of the authority he has used to amiss.” In this instance, however, the Senate is being asked to do something patently ridiculous: try a private citizen in a process that is designed to remove him from an office that he no longer holds.

          1. I mean, that does take some chutzpah.

            I just feel that the last four years, especially, have given the official seal of approval to lying. It’s beyond frustrating, because I really see it seeping into every-day life (and practice, which is a separate and depressing issue).

            1. Their intended audience is a collection of a few dozen half-educated bigots and cowering sycophants in the United States Senate — the likes of Cruz, Blackburn, Paul, Ernst, and Inhofe — and the broader but just as downscale Fox News/OAN/Breitbart/Newsmax/Volokh Conspiracy audience.

              No one who is going to care about a bit of elasticity with the facts or the reality-based world.

  11. I am wondering if the defense’s misrepresentation of Professor Kalt’s scholarship had anything to do with the one senator who changed his mind and switched his vote, making the current vote 56-44 instead of 55-45.

  12. A comment of mine from 11:27AM is still “awaiting moderation.” Moderation appears to be a bit immoderate today.

    Mr. D.

    1. Did you include multiple links? Because when a comment with multiple links is submitted, the boilerplate response is awaiting moderation, but it never happens.

  13. If Trump’s lawyer’s truly believed holding an impeachment trial after the President left office is unconstitutional could they not file a lawsuit to have the proceedings halted?

    It seems more reasonable to have the courts weigh in on constitutionality than have the senators vote on it.

    1. Well, in fairness to those attorneys (and without necessarily saying that this is due to their competence or integrity), there is no court that would touch that issue with a 10′ pole.

      The Senate gets to decide, not the courts.

      1. Right. If Trump’s convicted, then, later, if he tries to run for office again, courts might be forced to weigh in on whether he can/must be excluded from the ballot. But no judge is insane enough to try to enjoin the senate from conducting the trial.

        1. But why not? Surely an impeachment conviction, even if it’s later overthrown, is an actionable harm. He would certainly have standing to sue, and I’m not sure how a court would manage to punt (though the timeline might be an issue).

          1. An impeachment conviction may well be an actionable legal harm. But it’s by no means clear that a conviction will occur. It’s extremely rare for appellate courts intervene in the middle of a criminal trial to halt an alleged illegality occurring in that trial; rather, they wait to see whether a conviction results, and deal with the problem then, if necessary. Similarly, here the judicially prudent approach is to take no action while the Senate trial is underway. Perhaps a court COULD act on a suit against the Senate for injunctive relief, but it’s extremely unlikely that any court would do so.

        2. Also: the Senate is currently hearing arguments and deliberating not as part of the present Congress, but as the High Court of Impeachment. (A bit convoluted, but they convene as a legislature every day and then decide to turn into a court.) At the moment, it’s just as judicial as the Article III courts, and its precedents are (at least theoretically) binding under the common law.

          Mr D.

  14. If Kalt is the foremost authority on late impeachments, that does not say much for the state of scholarship.

    Another of Kalts’ dubious claims:
    “Later, Alexander Hamilton made the identical point, noting that “[T]he President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Virginia and Delaware.”145 One can debate whether a President who is only impeachable while in office is “on worse ground” than one who can only be impeached after leaving office—Hamilton may have been supporting the idea of late impeachability. At worst, though, late impeachment was simply beside the point to Madison and Hamilton, and not ruled out.”

    Following Kalt’s footnote to Federlist 69 we find different story.

    From Federalist 69:
    The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution. In this delicate and important circumstance of personal responsibility, the President of Confederated America would stand upon no better ground than a governor of New York, and upon worse ground than the governors of Maryland and Delaware. (end quote)

    Hamilton begins the above paragraph with a statement that applies only to persons who are in office, but Kalt fails to take notice. In the last sentence of the paragraph from which Kalt draws his cite, Hamilton is comparing the President with the governor of New York, who also can be removed from office during his term and so Hamilton says they are on same ground. Hamilton then states that the President would be on worse ground than governor of Delaware who can only be impeached after leaving office. Kalt somehow misses the import of that comparison. Why is the President who is only impeachable while in office is “on worse ground” than one who can only be impeached after leaving office? The rather obvious answer is that the President faces immediate punishment. As in my earlier post, Kalt again draw’s a completely unwarranted inference. There is no evidence for Kalt’s suggestion that Hamilton may have been supporting the idea of late impeachability. Nothing in that out of context cite nor in the entire paragraph supports that notion. Moreover the initial sentence of the paragraph is at odds with Kalt’s suggestion.

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