Writes lawprof Philip Bobbitt in "Why the Senate Shouldn’t Hold a Late Impeachment Trial" (Lawfare).
January 30, 2021
"There is no authority granted to Congress to impeach and convict persons who are not 'civil officers of the United States.' It’s as simple as that."
"But simplicity doesn’t mean unimportance. Limiting Congress to its specified powers is a crucial element in the central idea of the U.S. Constitution: putting the state under law.... The interpretation that persons are subject to impeachment and conviction even if they are not civil officers would greatly expand the Senate’s ability to prevent future office-holding.... [If] removal is irrelevant, any person who was once a civil officer might be impeached and convicted and by this means disqualified from any future office. Is it really compatible with the system of democratic representation...?... [P]runing the disqualification penalty away from its basis in removal creates a bill of attainder, a punishment levied by a legislative body without a criminal trial. An impeachable offense, it is well established, does not have to be a statutory crime. Thus disqualification standing alone and not as appurtenant to removal is precisely the sort of attainder envisaged by the Framers. Is it consistent with the American system of laws, to say nothing of the prohibition on attainders in Article I, Section 9, to allow Congress to impose such draconian penalties without a jury trial—in the absence of the removal of the officer by the Senate...?"
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178 comments:
What that guy said.
They just need to give it a break.
"Donald Trump deserves punishment for the long campaign to discredit the results of the 2020 election that culminated in his inciting the Jan. 6 attack on Congress and the Capitol."
I guess he had to include that as the first sentence of the article so that he could remain part of whichever clubs he belongs to.
When has adherence to constitutional law been a principle of the left? Most folks have moved on, but the Leftist oligarchy wants to show its dominance.
Horse-hockey.
“But Trump...” is not an exception to the Constitution.
Neither is “but racism”, “but slavery”, “but gender fluidity”, “but Covid”, “but equity”, or “but domestic terrorism”.
“But I find these things terrible” does not in any way alter those facts.
The author wrongly assumes the Constitution has anything to do with this. Leftists pay no heed to the strictures or structures of the document.
Sorta like Hitler regarded non-aggression pacts.
The Progressives have everything they need to keep Trump from regaining office.
It simply requires competently running the country for its citizens.
The downside for Progressives is that’s never their focus.
"The author wrongly assumes the Constitution has anything to do with this. Leftists pay no heed to the strictures or structures of the document."
Actually this piece, by a very eminent constitutional scholar, has forced people to take notice. And even ruthless politicos can see, sometimes, that a legal argument is a stumbling block for what they want to do.
You don't have to honor or feel bound by the Constitution to realize that other people do and that they will punish you politically for violating it.
Also, part of Bobbitt's argument is that if the Constitution is interpreted to permit this Senate trial of Trump for the purpose of disqualifying him from running for office again, it will set a precedent that you won't be too pleased to see used against you.
As Justice Jackson wrote, dissenting in a very famous case, "The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need."
"Donald Trump deserves punishment for the long campaign to discredit the results of the 2020 election that culminated in his inciting the Jan. 6 attack on Congress and the Capitol."
I guess he had to include that as the first sentence of the article so that he could remain part of whichever clubs he belongs to.
Exactly, and yet by doing so he commits the same sort of offense to the law that he proceeds to point out regarding impeachment. What crime did Trump commit? Is he not entitled to 1st Amendment protection? If it's ok to throw out the law regarding one individual in one circumstance, why not in another (impeachment)?
It's a circus act that will only prove the point that the dems are crazy. If they ban Trump he'll win instantly in court.
Could Obama be impeached for lying- at least 38 times in public- to the nation about us being able to keep our doctors and our insurance once Obamacare was passed? We now know that they knew that was a lie. Hell...his team laughed about it.
Or when Obama and Eric Holder approved of running guns (Fast & Furious) to the drug gangs in Mexico which has led to the murder of hundreds of innocent Mexicans, not to mention the cold-blooded murder of US Border Agent, Brian Terry.
Or when he, Hillary, and Joe Biden went in front of the world to tell everyone that the attack on our embassy in Benghazi was the result of a 3 year old unknown video by an obscure person in California who was later arrested in the dark of night for making the video.
Or when he lied to the country about trying to bribe the Iranian mullahs by sending them pallet-loads of US dollars- Billions- in the dark of night, without Congressional approval, and refusing to come clean on it until they had to.
Or when Obama's team allowed and approved of the IRS spying on Conservative organizations to accuse and hold them up in court, so that they could not raise money going into the 2012 election cycle. And seeing how spying worked for him, the next move...
When Obama and Joe Biden and Susan Rice and many of those now back in the Cabinet approved and initiated spying on the campaign of Donald Trump- an opposing party campaign for President. This, of course led to the entire Russia Collusion fraud for which no one is going to jail, or even paying a fine. No one that is, except for those who were spied on.
You see, there are some actual things a President, or former President should have been impeached for. They would not love how this turns out if the Democrats insist on ripping this country further apart with their professional vindictiveness. If only they were as good at legislating as they are being hateful.
The dems are acting always to preserve soap opera. The theory is that it's always possible to continue soap opera because there aren't many constraints that can't be encompassed in another episode, so it never runs up against reality.
Why soap opera? Women.
Screenwriters are rational creatures. It's their audience that may or may not have mental difficulties.
Nobody's more cynical than a soap opera screenwriter.
I mostly agree. My only disagreement based on recent discussions is if Congress can prohibit anyone from running for President. The disqualification seems to be for crimes tried in courts. As noted before in other comment sections, if impeachment and removal by Congress disqualifies someone from office, then explain Alcee Hastings.
The proper category for Pelose, Schumer etc. is evil, not stupid.
The faux impeachment of DJT for asking for an investigation into Biden's interference with a foreign country's business didn't cause solid-minded people to vote against the Dems. This one won't either, because "Orange Man Bad"
THEOLDMAN
It's very convenient that the power structure has decided to fence off the capitol and surround it with troops. Now, we just need to lock the fence from the outside and convince the troops to face inward to make sure none of the real criminals and insurgents escape.
Convicting Trump would not set a precedent for impeaching non-officers, but only for convicting people who were impeached while in office. The penalties of removal and disqualification can be imposed upon conviction, which is a separate procedure from impeachment. There's a good argument that conviction of a former officer who was impeached while in office is compatible with the text of the constitution: https://reason.com/volokh/2021/01/28/impeaching-officials-while-theyre-in-office-but-trying-them-after-they-leave/. The issue is not as simple as Bobbitt says. Our BS detectors should always be triggered by statements like "It's as simple as that." That kind of phrase has been used to support all kinds of specious arguments. Senator Mike Lee, who also takes Bobbitt's position in a Washington Examiner piece, does better by acknowledging that it's a close call.
Any concern about the precedent set by post-term conviction of an officer impeached while in office needs to be weighed against the precedent that would be set by allowing non-criminal "high crimes and misdemeanors" committed in the waning days of an officer's term to go unpunished. It is compatible with the Constitutional structure to allow the people's representatives to disqualify someone who commits a high crime or misdemeanor while in office. The Founders unquestionably established a way for Congress to take some electoral decisions out of the hands of the public. It is no greater affront to democracy to allow post-term conviction and disqualification of an officer impeached while in office than than to allow the same in the case of in-term conviction.
“ The faux impeachment of DJT for asking for an investigation into Biden's interference with a foreign country's business didn't cause solid-minded people to vote against the Dems.”
Actually it did. Trump’s vote court increased bigly. Just not enough to offset the cheating by Dems.
"There's a good argument that conviction of a former officer who was impeached while in office is compatible with the text of the constitution:”
An exceedingly cute argument which rejects the consensus view for 230 years in favor of simple majoritarian power politics.
Kicking a dead horse.
The public character assassination of Donald Trump will go forward. The rhetoric, accusations, legal concepts, etc, coming out of this "trial" would make Stalin blush with envy.
" allowing non-criminal "high crimes and misdemeanors" committed in the waning days of an officer's term to go unpunished”
Wait a minute. He committed no crimes. All of this rancor from the Democrats towards Trump is based on politics, and there is a remedy, a higher court, the American electorate. Why must the voters be denied a choice because the Democrats hate their opponent. This is banana republic stuff, right along with shutting down opposition voices in the press.
You might be able to come up with some excessively narrow interpretation of the constitution a fig leaf to use to overcome constitutional objections to this power play by Democrats, but you won’t find it in the history of our republic in what has been to now been considered fair play.
Every authoritarian assures the people that he is only taking away their rights because his opponent is particularly heinous.
Talk about the trammeling of norms! It’s the Democrats have been doing this for four years. And now, as if to prove Trump’s point, the lawyer who falsified and email and submitted it to a FISA court in order to spy on Trump’s campaign for the benefit of the Hillary campaign is getting off scot free.
An exceedingly cute argument which rejects the consensus view for 230 years in favor of simple majoritarian power politics.
The consensus view, to the extent there is one, is irrelevant to what the text actually says. And it's not "simple" majoritarian power. It's super-majoritarian, which is another reason that the precedent of convicting here is not likely to lead to the predicted parade of horribles.
Why must the voters be denied a choice because the Democrats hate their opponent.
Take it up with the Founders. They're the ones who decided to give Congress the power to disqualify.
And conviction will almost always require bipartisan agreement, so partisan hatred will rarely, if ever, be sufficient to disqualify.
This trial is not the end game. It's the starting point.
People like to talk about how stupid and out of touch democrats are, even as they watch every facet of American life skid towards a cliff.
They are undefeated in reshaping America, and I see absolutely nothing that has the power or the will to stop them.
And conviction will almost always require bipartisan agreement, so partisan hatred will rarely, if ever, be sufficient to disqualify.
Ever wonder why they always vote out the strongest, most able contestant on Survivor first?
The dems are acting always to preserve soap opera. The theory is that it's always possible to continue soap opera because there aren't many constraints that can't be encompassed in another episode, so it never runs up against reality.
I liked the phrase, "The MacGuffinization of Politics." This isn't really about Trump, it's about the left who believe that they are the heroes of their story and the story is about how they "defeated the evil dictator."
Let them. Then we know who to vote out. They are a bunch of lying idiots and they ALL deserve to be impeached....When they hate the electorate, and lie about what is really happening....Karma is going to be a bitch...
It is no greater affront to democracy to allow post-term conviction and disqualification of an officer impeached while in office than than to allow the same in the case of in-term conviction.
There's an alternative compelling argument that the "disqualification" clause was included only to prevent a president from from flouting Congress by reinstalling an impeached and convicted office-holder into another position in government. Obviously not relevant to the presidency itself.
Temujin said...
Could Obama be impeached for lying- at least 38 times in public- to the nation about us being able to keep our doctors and our insurance once Obamacare was passed? We now know that they knew that was a lie. Hell...his team laughed about it.
Yes...it is time to impeach the black messiah who lied about everything, but with such charisma and pride...
tim in vermont said...
Talk about the trammeling of norms! It’s the Democrats have been doing this for four years. And now, as if to prove Trump’s point, the lawyer who falsified and email and submitted it to a FISA court in order to spy on Trump’s campaign for the benefit of the Hillary campaign is getting off scot free.
1/30/21, 7:33 AM
And they don't realize how this and all the other non arrests or imprisonment of these scumbags who got away with treason is creating MORE extremism. It is bound to happen with a Government that is out of control, that can do whatever damage they want, to whomever they want, whenever they want.....
There's an alternative compelling argument that the "disqualification" clause was included only to prevent a president from from flouting Congress by reinstalling an impeached and convicted office-holder into another position in government. Obviously not relevant to the presidency itself.
I've seen that mentioned. If there's good evidence for that, it would be relevant under a purposivist interpretive approach, which isn't necessarily illegitimate. But if the original public meaning of the text makes the President subject to removal, I'd favor that conclusion.
I meant subject to *disqualification*.
Isn't there some mechanism by which Congress (i.e. Republicans in Congress) could send this issue to the US Supreme Court for adjudication?
, the lawyer who falsified and email and submitted it to a FISA court in order to spy on Trump’s campaign for the benefit of the Hillary campaign is getting off scot free.
Not true.
He must pay a crippling financial penalty of $100, and is not allowed to falsify any FBI/DOJ documents for 1 year.
"Donald Trump deserves punishment for the long campaign to discredit the results of the 2020 election that culminated in his inciting the Jan. 6 attack on Congress and the Capitol."
I guess he had to include that as the first sentence of the article so that he could remain part of whichever clubs he belongs to.
There are no secret clubs. It's just that if you wish to get published then you must genuflect to the reigning authorities.
Simple constitutional mechanics bar the Senate Trial.
It helps to understand the Impeachment is of an officer, or President, VP. Not the person
Senate trial can only address Appointed officers, Ambassadors, cabinet, Judges. None of that applies. That's why the CJ has declined to preside.
But the other part of the Constitution is being ignored. It defines the lie of Pelosi
paraphrase, 'but the person can be indicted and tried for crimes'
The reason this is never mentioned, is because no prosecutor would sully their reputation trying to prosecute President Trump. Since not a single element of a crime exists.
"There's a good argument that conviction of a former officer who was impeached while in office is compatible with the text of the constitution:”
An exceedingly cute argument which rejects the consensus view for 230 years in favor of simple majoritarian power politics.
Shorter: "It's OK if we do it to a Republican. It's double OK if we do it to Trump!"
The consensus view, to the extent there is one, is irrelevant to what the text actually says. And it's not "simple" majoritarian power. It's super-majoritarian, which is another reason that the precedent of convicting here is not likely to lead to the predicted parade of horribles.
Codswallop. Set this precedent and every president will get impeached, because reasons. (Even ones you like, Tom. Congratulations!)
, the lawyer who falsified and email and submitted it to a FISA court in order to spy on Trump’s campaign for the benefit of the Hillary campaign is getting off scot free.
Not true.
He must pay a crippling financial penalty of $100, and is not allowed to falsify any FBI/DOJ documents for 1 year.
Thats why Pelosi etal are wanting a fence around them. This and gamestop. Congress should be scared.
Careful there Professor Bobbitt. All this talk of removal may give the left some ideas.
Saying that Congress can't impeach someone who isn't a government official (as it says in this post's heading) is completely irrelevant. Trump was impeached while he was the president. That's already happened. There's no issue of impeaching him now as a former president.
People are free to give their personal views about whether it's a good idea to try Trump after his presidency, but the constitutional text allows it, as Prof. Michael McConnell explains.
The idea that the president could avoid a conviction by resigning just in time to be technically not-president at the moment of conviction is clever, but it happens to go against the Senate's constitutional "Power to try all Impeachments." As Prof. McConnell says: "The key word is 'all.' This clause contains no reservation or limitation." People are just trying to rewrite the constitutional text to suit their feelings about what would be best.
The argument that the whole thing is moot doesn't make sense. The whole thing is not moot. Only part of it is moot. The part about removing Trump is moot; he can't be removed from office now that he's not there anymore. But the part about disqualifying him from being president in the future is not moot; he could still be president, and that still matters. Until this year, had you ever heard anyone even suggest that one moot component of a case automatically means the whole case needs to be dismissed no matter how important the rest of the case is? I doubt it. That's like saying if you're tried and convicted of some crimes, and you get a 1-year sentence plus a 50-year sentence, then you can't appeal from that decision and make any argument about anything that happen at your trial as long as you've already served the 1-year sentence! No, we don't go looking for anything that's moot and use that as an excuse to dismiss other issues that still matter. If this were about a Democratic president, no conservatives/Republicans would be arguing for that idea.
Set this precedent and every president will get impeached
Every Republican president. Republicans don't appear to have the spine or testosterone to play this game by the same rules.
Authority? We don' need no stinkin' authority.
It is the Orange Man after all. You can spy on him, alter legal documents and mix judge and prosecutor roles without consequence.
The Democrats will hols a Soviet-style she trial and look for another Chrstine Blasey Ford-type moment or two.
there is nothing that would apply to trump, that wouldn't apply to the progs fanning the fames of riots that claimed tens of billions of damages, and hundreds of dead and maimed cops,
Codswallop. Set this precedent and every president will get impeached, because reasons. (Even ones you like, Tom. Congratulations!)
The House has had the same power to impeach sitting presidents for hundreds of years, and yet it has only happened 4 times. Conviction has never happened. The same political forces that make impeachment rare continue to apply, although political polarization and segregation are changing the calculus to some extent. This precedent would make it no easier to impeach, but would help to warn election losers from trying corrupt shenanigans to thwart the will of the electorate.
"Convicting Trump would not set a precedent for impeaching non-officers, but only for convicting people who were impeached while in office. The penalties of removal and disqualification can be imposed upon conviction, which is a separate procedure from impeachment. There's a good argument that conviction of a former officer who was impeached while in office is compatible with the text of the constitution: https://reason.com/volokh/2021/01/28/impeaching-officials-while-theyre-in-office-but-trying-them-after-they-leave/."
-- All that means is that everyone will draw up articles of impeachment on day 1, and then employ them years, maybe decades later. Congress has an extremely limited power in this regard for a reason. Impeaching Trump would obliterate any meaningful protection from private citizens from being tried by Congress. Don't imagine the next Republican wouldn't risk pre-emptive impeachment if they could find something high crime and misdeameanorish in their past.
There is no reason for Republicans -- or law abiding citizens -- to give an inch on this. If you think Trump committed a crime, the court of law is the right place to try him now -- not the politicized machinations of Congress.
Well, JAC, Chief Justice Roberts, no friend of Trump, seems to disagree, since he's refusing to preside over this kangaroo court. You're fine with a partisan Democrat presiding?
As Bobbitt explains, trial of a private citizen by a legislative body is a bill of attainder. End of discussion.
Tom said...
I've seen that mentioned. If there's good evidence for that, it would be relevant under a purposivist interpretive approach, which isn't necessarily illegitimate. But if the original public meaning of the text makes the President subject to removal, I'd favor that conclusion.
By now everyone should know that a legal argument has nothing to do with interpretation of words on paper.
Lawyers don't do that. They make shit up to justify what they want to do.
The Constitution is pretty fucking explicit about Bills of Attainder. The Constitution is explicitly clear in it's intent to avoid Stalinist show trials in the House and Senate that keep people out of running for office.
But Tom found a way to wriggle around that obvious intent.
I hope the Democrats listen to Tom.
there is nothing that would apply to trump, that wouldn't apply to the progs fanning the fames of riots that claimed tens of billions of damages, and hundreds of dead and maimed cops,
"Any concern about the precedent set by post-term conviction of an officer impeached while in office needs to be weighed against the precedent that would be set by allowing non-criminal "high crimes and misdemeanors" committed in the waning days of an officer's term to go unpunished."
-- Politicians are routinely not charged for crimes committed in office. We only need to look at the administration before Trump's for proof of that. If you want to start cleaning house, I agree. But I'm incredibly suspicious when only when it is convenient does the left suddenly see that the government has extra-Constitutional power to deal with their political rivals. If Trump goes for incitement, that's fine. But Harris, Biden, Cuomo, Pelosi, and a host of others should be jettisoned as well. I'm actually *perfectly fine* with applying this rule equally across parties too -- we know Clinton and her team lied routinely to the FBI during their investigation. Let's impeach her for the crimes she committed while in office. We know Obama and Biden approved of the illegal and unfounded spying on their political opponents and journalists. Draw up the impeachment.
If this is the rule, let's apply it. *Equally.*
"There is no authority granted to Congress to impeach and convict persons who are not 'civil officers of the United States.' It’s as simple as that."
Then again, we are dealing with progs, so they need no stinkin' authority when they have the power.
"Limiting Congress to its specified powers is a crucial element in the central idea of the U.S. Constitution: putting the state under law."
Sorry, Bobbitt. Appreciate the argument, but the central idea is long gone. We're having our cultural revolution, and breaking through those limits is--sorry, was--one of the key goals.
"You don't have to honor or feel bound by the Constitution to realize that other people do and that they will punish you politically for violating it."
And there we have it. Dems are running a political show impeachment and Senate trial, constrained only by political calculations. Nothing they do is based on or bound by "the Constitution."
As Nancy P. said, when questioned about the constitutionality of the individual mandate, "Are you serious?"
As long as we can simply do as we please, with no real regard for constitutional intent, couldn’t some future senate just as in-impeach a previously impeached person?
if impeachment and removal by Congress disqualifies someone from office, then explain Alcee Hastings.
Simple. Alcee Hastings is Black. If he was white he would be disqualified from holding office.
This is known as White Privilege.
"You don't have to honor or feel bound by the Constitution to realize that other people do and that they will punish you politically for violating it."
-- I mean, considering there's reasonable fear that the Democrats are planning to pack the court, turn DC into a state instead of doing what precedent has done and returning the city to Maryland -- and I have to ask: Who will politically punish them? They'll have the Supreme Court in their pocket, and adding two more Senators will give them control of the Senate, and enough votes to defeat the filibuster most likely.
Which is why you don't let people do insane power grabs and conduct show trials outside their legal authority on the flimsy: "Oh, someone will stop them if they try and do anything too bad."
*The unconstitutional show trial is the thing that's too bad.*
By all rights, shouldn't the Democrats want to run against Trump in the future?
"By all rights, shouldn't the Democrats want to run against Trump in the future?"
-- Remember, we know from the leaked Podesta/Clinton/DNC emails that Clinton *wanted* to run against Trump. Her campaign worked with media to bolster Trump during the primaries. So, it's entirely possible *they learned from last time.*
Matt Sablan said...
*The unconstitutional show trial is the thing that's too bad.*
Marbury vs. Madison is the problem.
"There's a good argument that conviction of a former officer who was impeached while in office is compatible with the text of the constitution:”
I think there's an argument, but it's really not all that persuasive
Impeachment was inherited from the British, and the exemplar of impeachment after leaving office was Warren Hastings, former Governor-General of India, back in the 1780s. He was accused of embezzlement, extortion, coercion, etc. He was acquitted after ten years of investigation and trial, and given a stipend as restitution.
In the US the exemplar was in 1876, with William Belknap, the Secy. of War. He was accused of embezzlement. He resigned just (minutes!) before he would be impeached. He was later acquitted on all five counts.
Both of the preceding were accusations of actual criminal acts. Both failed to convict.
Very strained precedents on this, and both failures.
After Marbury vs. Madison it was just a short trip to finding Obamacare in the Commerce Clause and the right to an abortion in the 14th amendment.
Where did they find Kelo again?
Ah 5th amendment.
Lawyers are so clever!
Plouffe, who retired to working for ntn the south african conduit for xte, said we must not only crush trump, but never let another rise, in his place,
I'm paraphrasing, but the gist is clear, mcconnell is as blinkered as the turtle that shares his name,
Trump holds the office of Former President, for which we are still paying him and providing him perks.
I read up on the hastings impeachment, I've even linked the transcript of what turned out to not be edmund burke's most noble period, hastings was being persecuted for efficiently handling the second?? mysore war, with innuendo that came from janus,
Conspiracy to deprive a citizen of their Constituional Rights is punishable by up to 10 years in prison.
A Bill of Attainder against private citizen Trump is such a conspiracy.
This is a good argument for not allowing late impeachments. But Trump was impeached while still in office. So the argument does not apply.
Motherfucker, I agree with JAC. I want to hide in shame. But this time he is right.
Don’t argue with him on his blog though, he censors disagreement.
James K
Odd to see you treat Roberts as infallible. I don’t. I am never afraid to disagree with him.
But more to the point, we don’t know his opinion, because the Democrats did not ask him publicly. So we don’t really know who decided to proceed without him.
I do agree proceeding without him is unconstitutional. But that’s a separate issue.
rooerts and the other three enabled this fraud, by denying the challenges,
https://legalinsurrection.com/2021/01/ny22-republican-now-leads-by-122-votes/
When Samuel Kent resigned, the impeachment against him was ended. Same with George English.
So, there seems to be more and more precedent for a plain reading of only impeaching current officials, and there seems to be no objection to someone resigning during impeachment to end the political trial (both, I believe, still faced criminal penalties.)
So... you know. Plain language AND precedent say Trump's impeachment shouldn't go forawrd.
Pish,Tush. I want too.
some learn no lessons at all,
http://patterico.com/2021/01/29/more-aggravating-news-from-the-california-high-speed-rail-authority/#comment-2497079
People need to modulate their fury. Let the masks come off, and a thousand flowers bloom.
Hey Tom: What's a non-criminal high crime?
Sablan
Do you realize how counterexamples work? There were impeachment trials of officers who resigned before trial.
James K said... Republicans don't appear to have the spine or testosterone to play this game by the same rules.
True. They fear the Democrat propaganda machine because too many people still get their "news" from the mainstream media.
Charlotte
Murder. It’s not a federal crime. It’s a high misdemeanor dontcha think?
Blogger Left Bank of the Charles said...
Trump holds the office of Former President, for which we are still paying him and providing him perks.
And you know this how ? Or is this more bullshit? Do you know he donated his salary ?
Ken B said...
Motherfucker, I agree with JAC. I want to hide in shame. But this time he is right.
Don’t argue with him on his blog though, he censors disagreement.
He moderates out disagreeableness and personal attacks. For intelligent people such as yourself, Ken, that shouldn't be so hard to understand and comply with. Debate and make your case in a decent manner. Don't quarrel, bitch, get in other people's space and yell. Never hit. If you make a mistake and break the rules, offer a good faith apology for your lapse in decent behavior.
Kindergarten rules, dude.
Blogger John Althouse Cohen said...
Saying that Congress can't impeach someone who isn't a government official (as it says in this post's heading) is completely irrelevant. Trump was impeached while he was the president. That's already happened. There's no issue of impeaching him now as a former president.
Well, now that the hard left has been heard from, I will go read my book.
Achilles said...
Matt Sablan said...
*The unconstitutional show trial is the thing that's too bad.*
Marbury vs. Madison is the problem.
It has always been the problem.
The Supreme Court tells the President of the United States he doesn't have any standing to even be heard by them, no one bats an eye.
I asked about alcee hastings last week and I f anyone answered I didn't see it it.
Leland asked the same question again. Only answer was from jersey fled who was non serious, but correct.
So let's try again:
How is a judicial impeachment legally different from a presidential one? Why can hastings, impeached and removed from a judgeship for bribery serve as a congressman and president trump could not?
That's a serious question and I'd be interested in the legal/constitutional justification.
John Henry
How can you have a valid trial without the chief justice presiding? Oh, Trump's not President. SO, how can he be impeached? Uhh....
Obviously, the founding fathers never thought the House would impeach a President with 7 days left in his term, and have a Senate Trial while he was a Private Citizen. No doubt, they would've asked "Why do that?" And the only answer is: "Personal Hatred and a political vendetta"
Bobbitt does not distinguish between person impeached while in office but tried after and person impeached only after leaving office. Trump in former group. Just don't see problem with that.
Jersey,
Perhaps non-legal would have been a better word than non-serious
John Henry
Looking back, we can see impeachment should require a 2/3 majority. But again, the founding fathers never expected a partisan house would ram through something not a "High crime or misdemeanor" with 20 votes to spare, after two hours of debate. OR that every major newspaper in the country would be owned a by small group who all think alike and support the same party.
I love people saying shit like "I don't have a problem with that". I don't have a problem with someone firing leftists from their jobs and forcing them to beg for their living. And I don't problem if they eat shit and die.
I don't have a problem. Yep.
I wish someone in the media would talk about the ramifications of having this trial. For example:
1) what's to prevent the D's from trying Trump next year or in 2024 if he decides to run?
2) what's to prevent the D's from trying Bush?
3) what's to prevent the R's from trying obama?
Tell me the answer.
The answer is: political reality.
DaveL said..
In the US the exemplar was in 1876, with William Belknap, the Secy. of War. He was accused of embezzlement. He resigned just (minutes!) before he would be impeached. He was later acquitted on all five counts.
That's a plot point in gore vidal's novel 1876 which I am currently reading so I looked up some more info
With 40 votes needed for conviction, the Senate voted 35 to 25 to convict Belknap, with one Senator not voting, thus acquitting Belknap of all charges by failing to reach the required two-thirds majority.[3][89][91] All Senators agreed that Belknap took the money from Marsh, but 23 who voted for acquittal believed that the Senate did not have jurisdiction.
Wikipedia
emphasis added
John Henry
"The proper category for Pelose, Schumer etc. is evil, not stupid."
Thanks RH.
Nothing annoys me more than the Center-Right constantly calling Leftists "Dumb" or "Stupid" or "Confused" or "Childish". They aren't any of those things. And constantly calling them this implies they aren't dangerous and can't cause grave damage. After all if Pelosi is "Childish" or "Dumb" we can just ignore her. Because how dangerous is a stupid person or a Child? We can always outfox her and laugh at her, she's just a child. But she's not. At all.
The answer is: political reality.
Yeah Meade you mean like the current "political reality" that is giving us THIS trial?
If I'd asked you 5 years ago, "could this sort of trial happen"? "Could a POTUS be impeached based on a one page article of impeachment, with 2 hours of debate, and a 20 vote margin by a lame duck congress, in a vote that was completely partisan?"
Would you have said "No that unreal. Never happen"? Or something else?
Just curious.
"Why can hastings, impeached and removed from a judgeship for bribery serve as a congressman and president trump could not?"
There's a separate vote after conviction to prevent future service. They didn't do that:
"Having achieved the necessary majority vote to convict on 8 articles, the Senate’s president pro tempore (Robert C. Byrd) ordered Hastings removed from office. The Senate did not vote to disqualify him from holding future office"
Ken B said...
This is a good argument for not allowing late impeachments. But Trump was impeached while still in office. So the argument does not apply
What we really need here is a queen and her governor General as the ultimate deciders of who gets to serve.
On the recommendation of the people, of course. Provided the people don't go off the deep end and recommend a Trump.
Right, Ken?
John Henry
The thing about impeachment is that payback is a motherf*ker. As a former county chair of a political party, I learned that the single animating feature of politics is settling grudges.
The lefties will squeal like the nasty little shits they are when the wheel turns. And it will turn.
- Krumhorn
The Trumpkins seem to think that because 23 unnamed senators thought something we must be crazy to disagree. Here's what Trumpkins never understand: some of us insist on thinking with our own brains. You can farm out your conscience to John Roberts if you wish, I refuse.
" Until this year, had you ever heard anyone even suggest that one moot component of a case automatically means the whole case needs to be dismissed no matter how important the rest of the case is? I doubt it."
But disqualification is one of the remedies. If you're going to use the idea of mootness, it has to do with whether there is a continuing harm that goes with the remedy. When the president was still in office, the idea was to remove him, and we understand how his being in office corresponds to the remedy of removing him. But now, to use the idea of mootness, we'd have to say that his mere existence as a private citizen who might once again run for office is a violation that corresponds to the remedy of disqualification. Do we really want to say that the Senate can target former officeholders and disqualify them from seeking office again? That's a very strange free-floating power for the Senate. If the idea is that power exists only when the former officeholder was still in office at the point of the House vote to impeach: why would that be — in mootness terms? The remedy of removal is just as inapplicable, either way.
Bobbitt talks about the Belknap case. I didn't copy that part of his argument, but if you want to talk about Belknap, please go to the link and see what he has to say.
Ann
Forget running for office. Trump can currently be appointed as a judge or ambassador. Is it unreasonable that Congress might want to disqualify him from that, by pursuing a process begun when he was in office?
Tillman argues that no president can be barrred from further elective office. In that case these are the only kinds of offices he can be barred from, so it’s the pertinent point.
His assertion in Belknap is that acquittals make poor precedents, because the grounds for acquittal can be unclear. This is a hopeless argument. The precedent flows from the fact of the proceedings occurring, not their outcome. Had Belknap been struck by lightning the precedent would still stand. (It also ignores the fact that convictions can be murky too.)
Ken B said...
James K
Odd to see you treat Roberts as infallible. I don’t. I am never afraid to disagree with him.
You can disagree all you like. He is still right. No one left to overturn his decision.
Ipresident trump was impeached for "inciting an insurrection"
The courts last week found that no insurrection or any other crime took place in the visitation by the public to the capital building.
I believe that us the effect of the decision to drop all charges.
So isn't the impeachment moot?
John Henry
There is some discussion in this thread about the disqualification clause, and I see that @Ken B mentions Tillman at 11:08.
If you want to dive into the serious debate about the many meanings of "officer" in the constitution, Tillman is the guy you want to read. The way into the topic is to start with "Constitutional Officers: a Very Close Reading", a short but serious introduction to the topic and to Tillman's work.
exactly john henry, like when the queen's governor general forced out goug whitlam in australia, the progs down under have never gotten over that
"When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two-thirds of the Members present."
Roberts is refusing to preside. Or it seems he is. No Chief Justice, no trial. This seems pretty obvious.
the visitation by the public to the capital building.
Clumsy phrasing, I agree. But 7could not think how else to describe a legal, unresisted, entry of citizens int the capital building.
Peaceful too. Staying in rope lines, leaving when told.
I'm really looking forward to the trial especially if pdjt testifies.
I expect some great theater. I hear a lot of criticism of mcconnell for rolling over on this.
It may be justified. Otoh, he may be playing don't throw me in the briar patch.
PDJT will milk this for all it is worth
John Henry
The Constitution has two categories of impeachment jurisdiction. Officers, or, President, Vice President.
The constitution allows for denial of future Offices of honor, power, profit, etc. That specifically excludes elected office.
The only reason for impeachment is to allow congress to stand in as proxy for the people that lack voice, or timely voice.
Officers are appointed and the people have no voice.
President is elected. Congress has no power to deny the people the right to vote for the person they choose.
The people are superior to congress.
This perspective only works for citizens that understand the United States is a self governing Representative Republic
Biff @ 5:47am,
That initial paragraph is how you get something that is otherwise reasonable published at Lawfare.
I have a different question. Pelosi started the process on Jan.13. The articles were delivered to the senate on Jan. 25th. Trump had been out of office for 5 days. The trial will not begin in the senate until Feb. 8. What's the point? He is already,"removed from office".
Wouldn't it make more sense to refer this to the civil courts?
Curious George
Roberts is not presiding, but we don’t know why. If he wasn’t asked that is one thing. If he declined it’s another. We don’t know.
Iowan2 at 11:36
I agree with that except for your choice of tense: “is a self governing Representative republic.” You assume a fact no longer in evidence.
doesn't the constitution say the limit to the impeachment is:
Removal from office AND disqualification.
How can it be "Not removal from office coupled with Disqualification"? That would require an "OR". There is no "OR". There is only an "AND".
BTW, do realize everyone has now accepted the idea that the House can impeach a President for ANYTHING? There is no need for debate. There is no need for a bi-partisan consensus. There is no need to even have a "High Crime and Misdemeanor". Everyone has now accepted the idea that one political party with a one vote majority can impeach a President for anything. All they have to do is make up some bullshit and call it a "High crime or misdemeanor".
And guess what all the D's will vote to punish Trump, just like they did in 2020, when they had tried to remove him from office. We've accepted that impeachment of the POTUS is not a serious constitutional matter, but just another political weapon. think about it, Trump could've won in a landslide and what the American people wanted wouldn't have mattered. All that mattered was that the D's had a 1 vote margin in the hOuse and could get 67 senators. That's all. So much for Democracy. So much for elections.
That's more reason why I hate the McConnell and his Senate clowns. They treated that partisan impeachment in 2020 as a serious matter, when McConnnell should have thrown it back in faces and laughed at Pelosi. He could've have done the same this time. Instead, he did even worse this time, he supported it.
How any Republican can stand this back-stabbing toad is beyond me.
Notice how all this is an attack on the power of the presidency, and a shifting of power to Congress. And bush and Obama and Carter are A-OK with it. Oh, I thought (based on Clinton's impeachment) all these ex-presidents cared so much about the balance of power between the branches of government. well, i guess not. That was all a pose. Like always.
"Ken B said...
Curious George
Roberts is not presiding, but we don’t know why. If he wasn’t asked that is one thing. If he declined it’s another. We don’t know."
No Ken, the why doesn't matter. At least not yet. He is not presiding. That is required for an impeachment trial. The senate majority can't simply name a substitute.
The only thing left to do is forget the trial. Or impeach Roberts via lack of "good Behaviour." If successful, a new CJ would be named by Biden, and then have him or her preside.
"iowan2 said...
President is elected. Congress has no power to deny the people the right to vote for the person they choose."
And there is no impeachment disqualifier for Potus eligibility:
"No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty five years, and been fourteen Years a resident within the United States."
It's not like the framers weren't thinking about impeachment and removal of office when they wrote the qualifications...the very next paragraph speaks to it: "In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice President, and the Congress may by law provide for the case of removal, death, resignation or inability, both of the President and Vice President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected."
Ocean lies again. The phrase sets a maximal limit on the punishment, it does not stipulate that they are conjoined.
Curious
I agree the trial in unconstitutional without him. I reject your inference that we know his opinion. We know only that senate Democrats want to proceed without him. I give them less credit for honesty than you do is all.
BUT ORANGE MAN BAD! WHY DOESN'T HE SEE THAT???!!!
"Ken B said...
Curious
I agree the trial in unconstitutional without him. I reject your inference that we know his opinion."
Hey dummy, I didn't infer anything.
I love the New Valdemort arguing with a law professor.
That will work out well.
: )
Joe
You bow down to credentials, I’ll insist on arguments.
"You bow down to credentials, I’ll insist on arguments."
I bow down only to God, while you bow down to a 94-year-old lady wearing a crown.
Reported that Schumer said Roberts was asked and declined.
Also reported that Senate Dems reluctant to allow witnesses. Want trial done in a week.
"Do you realize how counterexamples work?"
-- I do. And both of the counterexamples I've seen have had people acquitted, in part because the Senate did not think it was a legitimate use of the government's power to have continued to impeach the people involved.
So... they're not exactly *counter* examples are they? What we have are: Acquittals received in part because people thought it was an unconstitutional trial, and the ending of impeachments because of the belief continuing would be unconstitutional.
I'm not seeing how this is bolstering the "we can impeach people whenever just because the process started already" line of reasoning.
"Also reported that Senate Dems reluctant to allow witnesses. Want trial done in a week."
-- Are we going to allow a defense? Or is less a trial and more a prologue to a verdict?
Sablan
You just showed you missed my point. Your claim, no trial after leaving office, is refuted by any counter example. Belknap is one. You can cite all the examples on non impeachments and non trials you like, they don’t affect that fact.
Readering
So more unnamed sources. Sorry, no good.
"Reported that Schumer said Roberts was asked and declined."
From a new report:
"According to the US Constitution, “when the President of the United States is tried, the Chief Justice shall preside” — a requirement not made for any other impeachment case."
If Roberts thought it was legit, he would appear, especially as he has no love for Trump.
This should give you a clue as to the constitutionality (or lack thereof) of this proceeding.
Did I say that there has never been a trial after leaving office, or did I say that since there are prominent examples of impeachments being dropped when people left office -- even resigning while under impeachment -- bolstered the argument that there should not be impeachments of people not in office? It's possible I was unclear, but I think that a fair reading of what I said is that I was making the point that we have established precedent that people have had impeachments dropped solely by no longer being a public official/whatever they were beforehand, so the fact that Trump is no longer president has precedent for ending the impeachment.
The Supreme Court even gave a kind of warning shot to the Democrats that this was what the Supreme Court's ruling was when they ended the emoluments cases against Trump as he was no longer in office.
No Joe, at the most it affords an inference about what Roberts thinks, assuming you trust the news report. But I don’t regard Roberts as infallible, nor news reports as trustworthy. On other issues Trumpkins feel the same, but here (as usual) their bias rules.
Sablan
I agree with that formulation, that the senate has discretion to let sleeping dogs lie. But they also have the discretion to proceed. Your examples pertain to the first, not to the second.
Althouse bitched that I used the word pertain once, so I made a point of using it here. I seek to garner her ire.
Forget running for office. Trump can currently be appointed as a judge or ambassador. Is it unreasonable that Congress might want to disqualify him from that, by pursuing a process begun when he was in office?
Congress still has the option of simply not confirming him.
No impeachment required.
It cannot be concluded from Roberts's purported refusal to preside that he does not believe the trial is legitimate. That's one possible explanation, but there are others. For example, he may interpret the text of the Constitution as not permitting the Chief Justice to preside when the person being tried is not the sitting President at the time of the trial.
Tom
Correct. The Trumpkins are incapable of simple logic.
Tom said...
It cannot be concluded from Roberts's purported refusal to preside that he does not believe the trial is legitimate. That's one possible explanation, but there are others. For example, he may interpret the text of the Constitution as not permitting the Chief Justice to preside when the person being tried is not the sitting President at the time of the trial.
Another possibility-
Since the Constitution doesn't cover the trial of a former President, Senate rules apply. The Senate can change the rule, and convict Trump, bar him from future public office,strip him of all his assets, and revoke his citizenship with a simple majority vote.
Stupid fucking people can play this game all day.
Washington Examiner January 25, 2021 10:07 PM
'Senate Majority Leader Chuck Schumer says the ball was in Chief Justice John Roberts's court when he was offered and declined the chance to preside over former President Donald Trump's second impeachment trial.
The New York Democrat told MSNBC's Rachel Maddow in an interview that aired Monday evening that Roberts is not constitutionally required to preside over the proceedings given the fact that Trump is no longer in office.
"The Constitution says the chief justice presides for a sitting president," Schumer said. "So it was up to John Roberts whether he wanted to preside with a president who's no longer sitting, Trump, and he doesn't want to do it."'
https://www.washingtonexaminer.com/news/schumer-says-roberts-declined-preside-trump-second-impeachment-trial
EARLIER THAT SAME DAY The Hill reported that Senate Democrats DIDN'T EVEN ASK the Chief Justice to preside. Instead, Senator Patrick Leahy, the Senate President Pro Tempore would be handling the Chief Justice's duties.
A good example of making things up as they go along.
Note that Schumer didn't quote what Roberts ACTUALLY SAID TO HIM. It was entirely possible Roberts ALSO told him that he wouldn't preside over the generation of a (forbidden by the Constitution) illegal Bill of Attainder.
It is also entirely possible (because of the Bill of Attainder problem) that the Show Trial will be postponed again (indefinitely) until everyone forgets about it.
And we'll all live happily ever after.
Philip Bobbitt is indeed a distinguished legal scholar and a very sophisticated man.
Did anyone mention that he is LBJ’s nephew?
A convincing and well reasoned argument. Now, how do we get him fired?
Browndog
Moot. You no longer have a constitution. You have terms of service from monopolies. I thought everyone could see that clearly now.
Did you know Facebook can go back and edit your posts, and there's not a thing you can do about it?
Did you know Facebook can go back and edit your posts, and there's not a thing you can do about it?
Been going on for a while.
It cannot be concluded from Roberts's purported refusal to preside that he does not believe the trial is legitimate
I went over he enumerated categories of congressional jurisdictions covering impeachment.
Chief Justice Roberts is constitutionally required to preside at the impeachment trial of the President.
Not an Ambassador
Not a Judge
Not a Cabinet Officer
The Senate has no jurisdiction
People (Professor Michael McConnell, John Althouse Cohen, Tom) asserting that Trump was impeached while still in office are factually wrong.
"Impeachment", as a matter of historical use and precedent, is when the impeaching body takes the charges to the trying body, not when the impeaching body's internal procedures authorized such an action. (See here). In this case, that did not happen before January 25, 2021, which was after the natural end of Trump's term of office.
That the vote to authorize impeachment happened while Trump was in office does not change that the House, entirely voluntarily, did not actually impeach Trump until he was nothing more than a private citizen.
And yes, one might very well argue that it is nonetheless proper to allow the House to impeach someone who resigns to avoid impeachment, as there's plenty of precedents in law on not allowing someone to, by voluntary act, dodge jurisdiction. But that doesn't apply in this case, because Trump took no voluntary act to avoid impeachment. Rather, the House voluntarily chose to wait, until he was made a private citizen by automatic action of law, before choosing to impeach him.
Thus, the House by its actions is specifically claiming a right to impeach private citizens.
Blogger Ken B said...
Did you know Facebook can go back and edit your posts, and there's not a thing you can do about it?
Not only that, anything you post on Facebook publicly or privately they own non-exclusive rights to. Post a pic of your new baby and GE decides they would like to use her in an ad? Facebook will be happy to sell their rights to the image. Not a think you can do about it.
10-15 years ago the TOS even gave them rights to anything they found on your device, even if it had not been posted on Facebook, they owned non-exclusive rights to. I think that may have been changed but am not sure.
It's why I have never allowed my kids to access their Facebook accounts on my computers. My daughter did once, long ago, and I was cleaning facebook turds from my hard drive for a month. I don't even know if I ever got them all.
John Henry
"Impeachment", as a matter of historical use and precedent, is when the impeaching body takes the charges to the trying body, not when the impeaching body's internal procedures authorized such an action. (See here). In this case, that did not happen before January 25, 2021, which was after the natural end of Trump's term of office.
The article you link to doesn't establish that at all. It's very equivocal on what "impeachment" means in the federal context.
"The Constitution says the chief justice presides for a sitting president," Schumer said. "So it was up to John Roberts whether he wanted to preside with a president who's no longer sitting, Trump, and he doesn't want to do it."'
*******************
That is a purposeful and PERVERSE misreading of the Constitution, which does not use the word "sitting". Here are the plain words:
When the President of the United States is tried, the Chief Justice shall preside."
There's only one "president of the United States" at a time, and Trump IS not it.
Schumer is such a shifty and conniving POS.
Schumer is such a shifty and conniving POS.
The man from Planned Parent/hood. Let us kneel and bray for social progress.
IRC, the house impeached Trump during a lame duck session. DId they re-vote on impeachment with the new congress? If not, wouldn't that nullify it? Acts of an old congress are not binding on the new one.
BTW, no one seems to care that a Lame duck congress impeached Trump. Many of those who voted to impeach had been defeated and were on their way out. They shoudn't have been voting to remove a President when they were never going to face the voters.
SCHUMER IS A GREAT MAN.
/s/ Mitt Romney
New Congress started January 3. Current Congress impeached Trump.
But GOP retained control of Senate until results of GA runoff certified and new GA Senators sworn in Jan 20.
Thanks Rendering. I thought everyone started on Jan 20th. reading the constitutional amendment, the gap was deliberately made, so the new congress could elect the president if necessary.
Readering beat me to it. The new Congress started on January 3rd.
Hey. @rcocean got in there before me too. I will work on stepping up my game.
Question: Would any senator have standing to sue the Senate (thus presenting it to the SCOTUS) that the trial is unconstitutional? TIA.
THEOLDMAN
Instead of having hearings about election integrity and how to make sure there is no repeat of the problems which surfaced during the 2020 election, Congress wants to present a very emotional display of how they were terrorized and argue it's only "fair" that someone must be held ultimately responsible, namely Donald Trump.
Whether Trump incited a riot is not going to be seriously debated because we all know Trump never said anything about attacking the Capitol. The Congress will not allow that fact to be considered. I don't know how but they have ways to structure the discussion just as they had ways to limit evidence at Trump's first impeachment hearing and ways to limit discussion of voting concerns during the counting of the electoral college votes.
The discussion about the Constitution and if an impeachment trial of an ex-president is unconstitutional is a side show. Democrats are going ahead to remove any opposition.
The question of election fraud must be buried very deeply and rendered radioactive so that just suggesting that fraud might have taken place is a punishable offense or at least taboo. If just questioning the integrity of an election can get an ex-president banished then what do you think the powerful elite and those in power can do to you? Can you afford the legal bills?
Taboo. Day will come.
It has been suggested that among the reasons Roberts declined to preside was possibility of a USSC case arising from the impeachment. But a Senator would lack injury giving rise to standing to sue. Most likely plaintiff DJT. He would need better lawyers than he has had.
Tom said...
Any concern about the precedent set by post-term conviction of an officer impeached while in office needs to be weighed against the precedent that would be set by allowing non-criminal "high crimes and misdemeanors" committed in the waning days of an officer's term to go unpunished.
Wrong
Impeachment is not about punishment. Impeachment is about removing someone from office so they can't do further harm.
If the office holder has actually committed a crime, the way you punish that is in a court of law.
What's that? he didn't commit a crime? you're just unhappy about his behavior and you want him harmed for it?
Why yes, you ARE attempting to use Congress to impose a bill of attainder on a price citizen. See above
And it's all pointless, anyway:
https://gregquark.blogspot.com/2021/01/no-congress-can-not-keep-trump-from.html (It has links to the appropriate text)
Amendment 14, Section 3:
No Person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, ...
So, what's missing from here? That's right! "President" and "Vice President" are missing from here.
Important rule of legal interpretation: all the words there mean something.
So, what does it mean to "hold any office, civil or military, under the United States"? Well, it means to hold a non-elective office.
Because if elective offices were included, then they wouldn't need to specify that you can't be a "Senator or Representative in Congress".
What does the Constitution say about the penalties that can be levied via impeachment?
Judgement in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States
What is an "Office of honor, Trust or Profit under the United States"? Well, by normal rules of text and grammar, any such "office" is an "office, civil or military under the United States", since all offices are either civilian or military.
And those offices are not elective offices.
So, neither by impeachment, nor by Amendment 14, can Congress do anything to prevent Trump from running for President in 2024.
Jersey Fled said...
Forget running for office. Trump can currently be appointed as a judge or ambassador. Is it unreasonable that Congress might want to disqualify him from that, by pursuing a process begun when he was in office?
Reality check:
If someone engages in such heinous conduct that 2/3 of the US Senate is going to legitimately impeach him for his conduct, there's no way that 1/2 of the Senate will ever confirm his appointment to any position.
So, if your'e worried that he might get appointed to some position and confirmed in it, you're pretty clearly saying that you don't in fact think there's anything really wrong with what he did.
You're saying that the outrage against him right now is a "passion of the mob", and that soon that passion will wane.
Which is to say, you should lose.
So is Bobbitt suggesting that Trump could have famously shot and killed someone, as has Donald imagined, on Fifth Avenue while president, then immediately resigned his office and walked from criminal penalties? I just don't think the Founders had that in mind with the Impeachment clause.
Invoking constitutional principle in the midst of a partisan food fight is an entertaining form of civility bullshit. It may well be the better view but it’s entirely irrelevant to what is going on.
Impeachment is not about punishment. Impeachment is about removing someone from office so they can't do further harm.
The Founders also expressly approved disqualification from future office as a consequence of impeachment. And both removal and disqualification are punishments. So I can't agree that impeachment is not about punishment. And of course Congress can and should legitimately consider the real world consequences of the precedents they set by acting or failing to act. If Congress stands firm against high crimes and misdemeanors committed in the waning days of an officer's term, we're likely to get fewer such high crimes and misdemeanors. If they don't, there's a risk that we'll get more. It's not difficult to see, and there's nothing wrong with Congress considering all that.
So most of Trump's impeachment trial team has quit. Apparently because they wanted to defend on arguments like those put forward here, and he wanted to defend on grounds that the his elction victory had been stolen. Would not surprise me if money was also an issue. Stay tuned.
Make that all ....
gadfly said...
So is Bobbitt suggesting that Trump could have famously shot and killed someone, as has Donald imagined, on Fifth Avenue while president, then immediately resigned his office and walked from criminal penalties?
Wow, that's a new level of stupid, gadfly.
If Trump shot and killed someone the day before leaving office, then the day after he left office he'd be indicted for murder, and he'd be tried and convicted like anyone else. Which is why they wrote:
"Judgement in Cases of Impreachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law.
And so is the Party who is not convicted.
Tom said...
Me: Impeachment is not about punishment. Impeachment is about removing someone from office so they can't do further harm.
The Founders also expressly approved disqualification from future office as a consequence of impeachment. And both removal and disqualification are punishments.
Neither removal nor disqualification are criminal punishments. Both serve to protect teh body politic from a wrongdoer, rather than to directly harm the wrongdoer.
Which is why they wrote "but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgement and Punishment, according to Law." Because that's where the real punishment comes in.
I note that you don't try to challenge my point that nothing that Congress can do, can keep Trumo from running again for President.
So, what's the point? Are you really afraid that Trump will want to become a Judge, that some future President would appoint him as one, and that a future Senate would confirm him?
Tom,
You can look here, too.
There's some argument about this, of course; people will argue anything in law. But the clear precedent in US federal use in the 18th, 19th, and early 20th century, and in English practice prior to independence, is impeachment is not at the time of vote, but the time of the transmission. The Florida State Supreme Court ruling was based on those precedents.
President Donald Trump accordingly was not impeached on January 13, 2021. Instead, private citizen Donald Trump was impeached on January 25, 2021, several days after his term of office ended by automatic operation of law.
Accordingly, the House of Representatives is claiming the power to impeach private citizens, not as a special and necessary remedy to someone resigning to avoid impeachment, but by its own free choice.
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