"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...?"

Writes lawprof Philip Bobbitt in "Why the Senate Shouldn’t Hold a Late Impeachment Trial" (Lawfare).

"It is true that an impeachable 'abuse of power' can’t simply consist in using the powers of the executive for personal, political gain; that happens all the time."

"Abuse of power, for impeachment purposes, must consist in corruptly using those powers for personal, political gain. If the president in fact withheld military assistance authorized by Congress in order to gain an advantage over former Vice President Joe Biden, that was an unlawful and corrupt abuse of power. The fact that the GAO confirmed that this was a violation of law is not, as Dershowitz claims, irrelevant. And the claim that other presidents violated the same provisions—without a showing that they did so for personal, political reasons—has nothing to do with the question of impeachment. Of course, Trump’s defense team may well argue that the president never intended to connect his withholding of funds from Ukraine with the demand that the Ukrainian president announce an investigation of Biden and his son."

From "Alan Dershowitz’s Strange Constitutional Arguments on Impoundment and Foreign Policy" by Philip Bobbitt (Lawfare).

If we take Bobbitt's approach to heart, everything depends on what Trump had in his mind. The question is whether the Senators have enough evidence of wrong thoughts in Trump's mind that they should deprive the people of the choice we made in the last election, when the alternative is to go forward to the next election. And I'm saying "we" even though I did not vote for Trump. We, the People.

Sane talk on the NSA controversy.

Texas Lawprof Philip Bobbitt has a NYT op-ed on the NSA spying controversy:

IN the debate over whether the National Security Agency's eavesdropping violated the Foreign Intelligence Surveillance Act, we must not lose sight of the fact that the world we entered on 9/11 will require rewriting that statute and other laws. The tiresome pas de deux between rigid civil libertarians in denial of reality and an overaggressive executive branch seemingly heedless of the law, while comforting to partisans of both groups, is not in the national interest....

This is not to play down the damage done to our war aims by the executive branch's repeated appearance of an indifference to law. A president does have an obligation to assess the constitutionality of statutes, but when he secretly decides a measure is unconstitutional and neglects to say so (much less why), he undermines the very system of public consent for which we are fighting. Having said that, we also must not be so absorbed by questions of statutory construction that we ignore the revolutionary political and technological events that are transforming the world in which our laws must function.

Well said.