Closing Thoughts on Impeachment: Bad Precedents

The impeachment trial included several arguments that should not be allowed to calcify into constitutional precedents. They should, instead, be treated like Lincoln treated Dred Scott: as pertaining to the immediate case but open to challenge in future ones. To wit: Impeachment as Criminal Trial: Trump’s defenders argued that his behavior did not meet the criminal definition of incitement. But he was never charged with a criminal offense that threatened his liberty. He was, rather, impeached through a political process whose sole object—and whose framework of discussion—should have distilled to one question: Did it serve the public good for Trump to be convicted … Continue reading Closing Thoughts on Impeachment: Bad Precedents

Why only one Article of Impeachment?

Although much of the case against Trump rests on more than just his incitement of the attack on the capitol, the House only brought over one Article of Impeachment all of which revolves around the incitement charge. In their case to the Senate, they show all of the other things Trump did leading up to that day and in its aftermath later in the day. His complete failure to mobilize any response to the attack is one of the most obvious cases of dereliction of duty by any President ever. My Constitutionalist colleague Jeff Tulis and his co-author Bill Kristol … Continue reading Why only one Article of Impeachment?

The Hoarding Compulsion in Politics

The simplest explanation for the political cravenness of Donald Trump’s enablers is that they want to retain power. The corresponding puzzle is their reticence about using it: What is this power for if they are unwilling to exercise it in order to defend their branch of government?  That is a large question with an extended history. Both Democrats and Republicans in Congress have long been reluctant to utilize the power at their disposal to defend legislative authority. Their go-to move is to ask the courts to adjudicate disputes between the executive and legislative branches instead. But the trend is reaching its apotheosis … Continue reading The Hoarding Compulsion in Politics

The Constitutionality of Post-term Impeachment

As we’ve seen in the legal briefs leading up to this impeachment and now in the debate itself, precedents matter in these kinds of issues. The question whether a President could be impeached after his term was over hadn’t been answered by prior precedents. Hence it was a question now. The Senate just voted 56-44 affirming the constitutionality of Trump’s impeachment after he left office. That vote likely means he will not actually be convicted. But it also means that, if some future President decides to incite riots at the very end of his term, this precedent has established that … Continue reading The Constitutionality of Post-term Impeachment

Congress and Deliberation

Jack Rakove has a good piece in the Washington Post pointing out that the filibuster in the Senate does not induce deliberation. Instead, it has essentially become a supermajoritarian requirement to lawmaking giving us a Senate “that prefers parliamentary obstruction to constructive deliberation — something the “greatest deliberative body in the world” now seems incapable of doing.” This is not what James Madison had in mind. On that, Peter Wehner has a great essay that echoes much of what has been said here about representatives actually reasoning and thinking—deliberating about the public good—rather than simply being the mouthpieces of their constituents. As Wehner writes, … Continue reading Congress and Deliberation

“The Second Trump Impeachment” Panel with John Yoo, Ben Kleinerman, and Jeffrey Tulis

The video is here. It’s a spirited, informative, and entertaining exchange. If you don’t want to read the 80-page House report arguing for impeachment (although you still should), this would suffice as a substitute. Continue reading “The Second Trump Impeachment” Panel with John Yoo, Ben Kleinerman, and Jeffrey Tulis

I Think I am Against a Senate Impeachment Trial for Trump

Jeffrey C. Isaac is the James H. Rudy Professor in the Department of Political Science at Indiana University. The best thing now is to let Trump leave the White House in disgrace, to do everything possible to put him out of the public mind, and to move forward politically with the business of Democratic governance and democratic citizenship. I think I am against a Senate impeachment trial. I think I am. I’m not sure. I am sure about little these days. But I am pretty sure that a Senate trial is not a very good idea. Of course Trump deserves … Continue reading I Think I am Against a Senate Impeachment Trial for Trump

Impeachment vs. Censure: Constitutional Law, Politics, and the Art of the Possible

Brian C. Kalt is Professor of Law & The Harold Norris Faculty Scholar at Michigan State University College of Law One difficulty in writing about President Trump and impeachment—or about President Trump and anything, really—is that the news cycle has become so short. Events often overtake predictions. We cannot know what Trump and others will do and say between now and the end of the Senate trial. As such, we cannot know how many senators will vote to convict. But at some point, perhaps well before the trial is over, Democrats may conclude that they have no possibility of garnering … Continue reading Impeachment vs. Censure: Constitutional Law, Politics, and the Art of the Possible

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?