Dereliction of Duty

In The Bulwark, William Kristol and I argue that although dereliction of duty is not a separate Article of Impeachment voted by the House against Donald Trump nor is it explicitly mentioned in the Article on incitement to insurrection, evidence of dereliction of duty can and should be used at the Senate trial as part of a multi-faceted case for gross abuse of power that led to the insurrection at the Capitol. This piece continues a conversation initiated by Laura Field, here and here. Continue reading Dereliction of Duty

Why a Trial for Trump?

There will be a Senate trial of Donald Trump after he is no longer in office. Because the impeachment process is designed as a mode of high politics to remove a president who abuses his office and the public trust, and if convicted, he would still be subject to criminal prosecution if warranted, many citizens will wonder: why have a Senate trial to remove him from an office he no longer holds? There are several reasons. The trial will be the opening exercise in a national Reckoning designed to diagnose the damage that Trump and Trump enablers did to the … Continue reading Why a Trial for Trump?

Podcast on Impeachment and Pardons

Connor Ewing and I recently did a podcast on Podopticon with Randal Hendrickson the day before the impeachment vote in the House. We discussed impeachment and previewed the argument that Corey Brettschneider and I make the next day in the Washington Post about the pardon power. We were able to raise new issues regarding some topics earlier discussed here on the The Constitutionalist and in The Atlantic. Continue reading Podcast on Impeachment and Pardons

More on Crimes and High Crimes

As usual, a terrific and thought-provoking post by Greg Weiner. I have a couple of amendments. The most important one is that the impeachment clauses of the Constitution were written with the British impeachment of Warren Hastings in mind and underway. As Raul Berger showed years ago, “high crimes and misdemeanors” was a technical phrase invented many years before the crimes we now know as misdemeanors was invented. What we call misdemeanors were called trespasses at the time the idea of high crimes and misdemeanors was devised. The original idea, imported into our Constitution, meant primarily abuse of office. That … Continue reading More on Crimes and High Crimes

Impeachment and the Limits of the Pardon Power

Corey Brettschneider and I published a piece in the Washington Post this morning arguing that a president cannot pardon himself for high crimes that are the subject of his own impeachment, nor can he pardon others directly connected to those crimes. This is a controversial view within the legal establishment but it has never been addressed by courts. We defend our view at length in an earlier piece this past summer in The Atlantic. The point of today’s piece is to urge Congress to adopt our interpretation, and to formally express this constitutional interpretation in service of fortifying its impeachment … Continue reading Impeachment and the Limits of the Pardon Power

Limits to the Pardon Power

Some months ago, Corey Brettschneider and I wrote a piece for The Atlantic arguing that the traditional interpretation of the pardon power — that it is unlimited but for one very narrow exception — that the President cannot pardon any impeachment charge or conviction. We argue that impeachment should be understood more broadly to imply 1) that a president cannot pardon himself and 2) he can’t pardon others for crimes directly connected to an impeachment investigation of himself. We argue that the debates during the Philadelphia convention do not evidence a clear view of the delegates on this matter — … Continue reading Limits to the Pardon Power

The American Abyss

The best essay, so far, about the sources and meaning of the insurrection. Timothy Snyder took a lot of grief from sophisticated academics for his book On Tyranny and for his worry about the incipient American version of fascism. I am pretty sure that he takes no pleasure in the fact that he was right. This extraordinary piece by him in the New York Times is well worth reading. Continue reading The American Abyss