I have great respect for Harvard law professor Lawrence Tribe, who remains one of the iconic figures in constitutional law and someone with whom I have had exchanges for years on legal controversies affecting this country. While I was not surprised to see that we disagreed on a constitutional issue related to President Donald Trump, I was surprised to see that he took literally a comment that I made as a joke about impeachable tweets on Morning Joe recently. Tribe ironically responded in a series of tweets to the comment. The more serious problem is that I considered the suggestions of impeachment over Trump’s criticism of President Obama to be laughable. They clearly are not to Professor Tribe. It is something of a reversal of roles since both Tribe and I testified during the Clinton impeachment hearings where he suggested a narrower definition of the constitutional standard while I argued that Clinton could be impeached for an act of perjury.
On MSNBC’s Morning Joe broadcast on Tuesday, I was asked about whether Trump could be impeached for making false claims about the former president because the comments were made on Twitter. I laughed off the suggestion which I honestly viewed as made somewhat in jest: “There’s no penalty to the president for bad tweets,” I said. “[Twitter] postdated the [U.S. Constitution’s] impeachment clause. So, there’s no impeachment for bad tweets.”
I obviously did not mean that one cannot be impeached when committing an otherwise impeachable act through new technology. That would be facially ridiculous. Rather, I was stating (and entirely believe) that a president saying rude, defamatory, or untrue things in public about a predecessor is not an impeachable offense. While most presidents have generally maintained civil relations with their predecessors, such personal attacks are not unprecedented. Indeed, as I recently discussed, presidential attacks on the courts are not unprecedented.
Tribe however went to Twitter to not only disagree but affirmatively say that he thought these were potentially impeachable tweets.
1/On @JoeNBC@JonathanTurley says Trump’s false claim that 44 wiretapped him cdn’t be impeachable because #Twitter didn’t exist when the
2/Impeachment Cl. was written in 1787. What’s he mocking? Stupid versions of originalism? The gravity of T’s abuse of power? POTUS himself?
3/Using power of WH to falsely accuse predecessor of impeachable felony does qualify as an impeachable offense whether via tweet or not
To answer his question: yes, I was mocking. There is nothing in the Constitution that says “Thou Shalt Not Tweet” or anything unique about Twitter for the purposes of impeachment. There is no ban on tweeting like there is for emoluments. It is simply a form of communication. It is the content of communications and not the vehicle that concern constitutional analysis.
A more serious question is raised in the last tweet. How is insulting a former president or making a false allegation a misuse of power? A president does retain a modicum of free speech. There is no evidence of Tribe using the powers of his office other than conveying his views of an allegation that was published on a conservative website. Indeed, part of the complaint against Trump is that he failed to use his staff to confirm whether the allegation was indeed true.
A President can be removed from office only upon “Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Constitution, Art. II, section 4. As Professor Tribe maintained during our respective testimony and writings in the Clinton Impeachment, “Our Constitutional structure reaffirms that the standard must be a very high one.”
Tribe and I have disagreed about the history and meaning of the impeachment standard, but this is one disagreement that I did not anticipate. Twitter and social media allows for citizens, including presidents, to vent their opinions and views. That is protected speech in my view absent a few narrow exceptions. Just as Trump could say these things in person, he can say these things in Tweets. There is nothing about Twitter that changes the foundational fact that this is an opinion. It may be erroneous or even non-presidential but it is an opinion.
I still hope that there will be an impeachment controversy where Professor Tribe and I will find common ground. However, it will not be over these “impeachable tweets.” Of course, the final tweet may not have been sent with much circumspection but of course that is the very point of this entire controversy.
https://twitter.com/tribelaw/status/840767591694127105
Is it not funny that Republicans believe in the Nixon rule, ” When the President does it its not illegal ” when their guy is in there…….BUT, oh boy if its a Democrat they had better crossed the T’s and dotted the I’s.
Hi Paul,
I saw that!
It looks like pretty much everything is swept up by multiple agencies, to be shared whenever they like. The police state is apparently well loved by Democrats and other “resisters”. I never thought this day would come but here it is.
It’s really weird for me to see all these lefty people embrace a police state. As Trump essentially agrees with them about the need for more wars, more surveillance and less Constitutional rights, I have no idea what they are actually resisting.
I understand we come from very different political leanings and I appreciate that you are not a person who is nasty about that fact. I can’t say Trump is really doing anything but embracing his own version of totalitarianism. For me then, we have both a left wing and right wing which wants some version of a totalitarian society. That scares me a great deal. The left scares me more because they want totalitarianism which has no legal brakes (however meager they are) on it.
Did Larry receive his own IC briefing? If so, I would like him to release the evidence he was given showing that Trump wasn’t bugged. On wikilieaks twitter you will see a video of Kuccinich talking about how he was bugged, in his office, while making a phone call to a foreign power. This call was made with the prior permission of govt. elders. This tap wasn’t done with a FISA warrant and he cannot get his stack of FOIA requests to the “intelligence” agencies about this tap answered by them. However, a newspaper released the recording of the conversation to him.
So Larry, how do you know Trump wasn’t bugged? The truth is we don’t know what happened. Until we do, I cannot say anything more than I believe it was highly likely that it happened and others can claim they don’t believe it happened.
Powerful people are worshiping the IC. What is the progressive utopia that Larry and other’s like him believe will prevail if they can only get rid of Trump? I resent the neo-con/liberal call for the military and the IC to rule my nation. We have seen clearly what happens when the clandestine/military services goes for the ruler-ship of other nations. Evidently, Pinochet has become a liberal icon now!
As to discrediting Obama. He has discredited himself. He is a war criminal. That’s not conjecture. It’s a fact which can be proven. A fact I wish would be allowed to be proven in a court of law. The need to worship a president is disgusting. Respect is due when it is earned. If Larry respect a man who crowed about killing a 16 year old boy via drone, than I question his own intellectual and ethical standards.
As to JT’s statement. I don’t even want to comment on how stupid it is to claim what Larry did about it.
Jill – and now we have a report that Best Buy’s Geek Squad is working for the FBI. Take your computer to Data Doctors.
There are still a few state criminal libel statutes on the books. Given the nature of social media, could any such state prosecute? If the tweet emanated from Mar-a-Lago, jurisdiction might be clearer … http://legaldb.freemedia.at/special-report-criminal-libel-in-the-united-states/, http://www.firstamendmentcenter.org/criminal-libel-statutes-state-by-state/
I believe that Prof. Tribe’s position is not defensible under any reasonable definition of “high crimes and misdemeanors.” If defamation were an impeachable offense, of course, the method of its publication would be immaterial. There is a possible civil remedy available, however. A writing falsely accusing another of a criminal offense is libel per se. I can’t imagine that such an action will be filed in this instance, but it would be a very interesting case from a lawyer’s perspective.
The problem with” high crimes and misdemeanors” is nobody knows what the Hell they are so it’s up to the House to define them. Tribe is nuts here but it’s due to a pretty glaring omission in draftsmanship, Mr. Madison. Then again he wasn’t a lawyer.
You are engaging in what Mr. Turley is engaging in … changing the charge and defending against the charge you WANT to defend against. This was not ‘Defamation’ this is a charge that another person committed a felony. Of course not JUST a felony but a felony meant to change the course of a national election. Beyond that this comes from someone who is in a position not to speculate, but to speak authoritatively … who SHOULD be in a position to have PROOF. Present the proof or close your facial anus.
Turley is also comparing a lie to cover up consensual sexual activity with a lie to accuse someone of a grievous felony. How do I know it’s a lie … he has the proof at his fingertips yet we saw NONE.
Tweets are for twats.
It is funny that Turley thinks that perjury is an impeachable offense, EXCEPT when it is applied to conservatives. Thus Session’s blatant lie about his dealings with the Russian ambassador is viewed as not intending to deceive and thus not perjury! Incredible. Then we have the view that the executive is NOT constrained by ethics rules either. Thus using official office to promote products is perfectly OK. Then it is OK for Trump to violate his contract with the GSA for his hotel, and nothing is done about that either. Trump has made Clinton look like a saint of truth and righteousness. We are now setting a record for official corruption unparalleled in our history.
Sessions did not lie or perjure himself. During a lengthy hearing, Franken asked with a 3 minute question if Sessions had ever met with the Russian as a PART of the Trump CAMPAIGN. Sessions said no. He was not asked if he had met with him in his role as Senate Armed Services committee during which he had a ROLE AND RESPONSIBiLITY to meet with a variety of Ambassadors and representatives of foreign nations, as Franken will knew. And because Sessions is a decent and honest man he recused himself (see AG Lynch for a definition of someone who does the exact opposite).
Is that a joke?
Flynn resigned. Sessions should follow suit
This is what can happen when a person is champing at the bit so forcefully they break the reigns of reason. The want to impeach President Trump is so fervent, seemingly everything is latched onto.
Humor is often the first thing to be condemned by those who insist they, and only they, are correct.
Trivia, Darren, but did you know that the phrase was originally “champing at the bit?”
See: http://grammarist.com/usage/champing-chomping-at-the-bit/
Interesting. We learn something new every day.
Darren,
If interested in learning may I suggest you learn the difference between rein and reign. “Bits” would indicate the correct word is rein.
It’s always a surprise, a difficult one, when someone you have respected so long, and should know you better, takes a joke seriously.
Tribe as protector of the faith. A great article by Shelby Steele:
https://www.wsj.com/articles/the-exhaustion-of-american-liberalism-1488751826?mod=e2two
It’s not yet Halloween. Twick or Tweet, to quote Elmer Fudd.
Could Trump’s tweets, as part of a larger pattern of conduct designed to impede an investigation into his conduct, constitute an impeachable offense? Possibly.
Do we have sufficient evidence to prove that Trump was tweeting for an impermissible purpose? Not at this time. That remains to be seen.
If insulting a predecessor or making unsubstantiated allegations was an impeachable offense, then Obama would have been impeached.
Besides that, we do not know yet if Obama had Trump wiretapped. There was NYT article indicating that he did. We know that his national security adviser’s conversations were recorded and listened to, without a court order. Trump would have to go to NSA to find out about any FISA activity.
Dave137 – by that reasoning, then Obama should have understood the Constitutional Law he had so much experience in sufficiently in order to actually win most of his government’s Supreme Court cases. In fact, he lost most of them.
Bush loves the Obamas. There is no bad blood there.
Bush doesn’t let likes or dislikes show in public. So far his private thoughts have stayed that way. To say they love anyone would require confirmation, which the Bush family would never do.
http://www.cnn.com/2017/03/02/politics/george-bush-michelle-obama-friends/
Citations for the BHO comment in your first sentence would be nice. Isn’t it amazing how allegations against a Dem are rock solid once they exit the facial anus of any Republican swine but we must tread lightly over allegations against Republican vermin?
As far as SCOTUS cases … there are varying interpretations on one hand and then there are political garbage motivations on the other. Filth like Scalia, Thomas and Alito are conservative rubber stamps not worth the skin they wear (wore).