Category: Constitutional Law

Incitement Or Free Speech? Comey Calls For the Republican Party To Be “Burned Down”

There is an interesting interview this week with former FBI Director James Comey.  He states that he now believes that the infamous alleged “pee tape” may be real and makes other surprising statements while pitching his new book.  One statement, however, stood out: “The Republican party needs to be burned down … It’s just not a healthy political organization.” Since the Republican National Committee was targeted with a pipe bomb in the recent riots, some could argue that this is incitement to arson or violence. I would not. I would call it free speech and hyperbole. The question is where the line is drawn given the impeachment of Donald Trump based on his speech and the allegations that others who used such hyperbolic language are actually guilty of incitement. Continue reading “Incitement Or Free Speech? Comey Calls For the Republican Party To Be “Burned Down””

Warren Hastings and the Historical Basis for Retroactive Impeachments [Updated]

It sometimes seems that every impeachment road leads back to Warren Hastings.  Previously, I wrote about Hastings in addressing the bribery theories being voiced by Democratic leaders and legal experts in the first Trump impeachment. Now Hastings is back as a historical precedent for the impeachment of former officials.  As I have repeatedly in virtually every interview since the second Trump impeachment, there are good-faith arguments on the use of impeachment for former officials. However, Hastings is not particularly strong precedent beyond the obvious point that impeachment was used retroactively in Great Britain. Continue reading “Warren Hastings and the Historical Basis for Retroactive Impeachments [Updated]”

The No-Show Option: Trump Could Sit Out The Senate Trial And Still Prevail

Below is my column in the Hill on why President Donald Trump might want to consider skipping the upcoming Senate trial. This is an expanded version of that column. Rumors continue to suggest that Trump is considering Rudy Giuliani as counsel — a role that would be viewed as open contempt to the Senate and, as Karl Rove noted, would increase the chances of a conviction.  There is a better defense: no defense.

Here is the column:

Continue reading “The No-Show Option: Trump Could Sit Out The Senate Trial And Still Prevail”

Being Blount: The First Impeachment May Offer The Best Defense For Trump

If American politics shows anything, it is that enmity, not necessity is the mother of invention.

Many continue to feel rage over the Capitol riot on Jan. 6. I condemned the speech of President Donald Trump when it was still being given and opposed the challenge to the electoral votes. However, it is the future of the Constitution, not Donald Trump, that most concerns me as the Senate is about to try to remove a president who has already left office. Continue reading “Being Blount: The First Impeachment May Offer The Best Defense For Trump”

The Senate’s Cadaver Synod: The Trial Of Citizen Trump Would Raise Serious Constitutional Questions

Below is my column in USA Today on the upcoming Senate trial of President Donald Trump. The Hill recently my second column on why the best defense of Trump could be no defense — to skip the Senate trial and force a threshold vote on the constitutionality of the trial of an ex-president.

Here is my column: Continue reading “The Senate’s Cadaver Synod: The Trial Of Citizen Trump Would Raise Serious Constitutional Questions”

The Big Sleep: CEO Mike Lindell’s Notes Reference Imposition of Martial Law

MyPillow CEO Mike Lindell has long been a diehard supporter of President Donald Trump. Indeed, on the day of the infamous speech preceding the riot in the Capitol, Lindell told media that he was confident that the day would bring vindication for the President. The statement left many of us scratching our heads since the certification of the victory of Joe Biden was only hours away. Now, the Washington Post has blown up the notes of Lindell leaving the Oval Office, which appear to refer to the Insurrection Act and the imposition of martial law. Media reports state that President Trump “cut short his meeting with MyPillow CEO Mike Lindell within minutes, after the entrepreneur was spotted at the White House brandishing notes referencing martial law.”

Continue reading “The Big Sleep: CEO Mike Lindell’s Notes Reference Imposition of Martial Law”

The Second Trump Senate Trial: Think Belknap Not Blount

As we look ahead to a second Trump Senate trial, many are referencing the impeachment of Sen. William Blount, who was already expelled when he was impeached. That case has always been anomalous as the impeachment of a former legislative figure. It was rejected by the Senate. The more relevant case to the immediate issues is that of former Secretary of State William Belknap.

Continue reading “The Second Trump Senate Trial: Think Belknap Not Blount”

No, Joe Biden Should Not Pardon Donald Trump

Former FBI Director James Comey declared yesterday that he believes Joe Biden should consider granting clemency for President Donald Trump “as part of the healing of the country.” Just as I have long opposed self-pardons as an abuse of presidential power, I also have long opposed such pardons by their presidential successors.  Comey is echoing the Ford rationale used in the Nixon pardon, which I continue to view as the wrong decision.  Impeachments go to the status of presidents as the officeholders. Indictments go to their status as individuals.  Indeed, I have long believed that presidents can be indicted while in office, including both President Bill Clinton and President Donald Trump. Continue reading “No, Joe Biden Should Not Pardon Donald Trump”

Georgia Rep Pledges To File Articles of Impeachment Against Joe Biden

Rep. Marjorie Taylor Greene is a newly elected Republican member from Georgia who pledged yesterday that “On January 21, 2021, I’ll be filing Articles of Impeachment against Joe Biden for abuse of power.”  That is precisely what I criticized Democrats for doing in challenging the legitimacy of Donald Trump’s election starting on the inauguration and raising repeated demands for impeachment for acts ranging from his criticism of NFL kneelers to his inflammatory tweets. It was wrong for them and it is wrong of Greene and any other Republicans who want to engage in this type of retaliatory impeachment effort.

Continue reading “Georgia Rep Pledges To File Articles of Impeachment Against Joe Biden”

President Donald Trump Impeached For Second Time

U.S. House of Representatives

With the entry of the 217th vote, the House of Representatives have impeached President Donald Trump for a second time. As I have previously stated, my primary objection to this action is the use of a snap impeachment that dispenses with the traditional hearing or inquiry of impeachment. There was no opportunity to debate the language or the implications of the language. Indeed, the House gave the President a threshold challenge based on this process. With the addition of a possible trial after Trump leaves office, the rush to judgment could become a parade of constitutional horribles.  The use of impeachment to “remove” a president who has already left office is ripe for challenge on the Senate floor and even later in the federal courts.

Continue reading “President Donald Trump Impeached For Second Time”

Democratic Member Accuses Colleagues Of Conducting “Surveillance” For Capitol Rioters

As reported by Newsweek, Rep. Mikie Sherrill (D., N.J.) has gone public with an extraordinary allegation against some of her colleagues that they conducted secret surveillance in a conspiracy with rioters at the Capitol. If true, those members could be criminally charged and expelled from the House. Conversely, if Sherrill has no such evidence, she could (and should) face a resolution of censure or resolution.

Continue reading “Democratic Member Accuses Colleagues Of Conducting “Surveillance” For Capitol Rioters”

Pelosi Names Eric Swalwell As House Impeachment Manager

Speaker Nancy Pelosi shocked many in Washington by appointing Eric Swalwell as a house managers in the impeachment of President Donald Trump as he continues to face calls for his removal from the House Intelligence Committee due to his alleged intimate relationship with a Chinese spy.  Swalwell has been bunkered down to avoid questions from the media and the public, but he will now be one of those prosecuting the case against the President.

Continue reading “Pelosi Names Eric Swalwell As House Impeachment Manager”

Ron Paul Posts Criticism of Censorship on Social Media Shortly Before Facebook Blocks Him

We have been discussing the chilling crackdown on free speech that has been building for years in the United States. This effort has accelerated in the aftermath of the Capitol riot including the shutdown sites like Parler.  Now former Texas congressman Ron Paul, 85, has been blocked from using his Facebook page for unspecified violations of “community standards.” Paul’s last posting was linked to an article on the “shocking” increase of censorship on social media. Facebook then proceeded to block him under the same undefined “community standards” policy.

Continue reading “Ron Paul Posts Criticism of Censorship on Social Media Shortly Before Facebook Blocks Him”

DC Attorney General Looking Into Arresting Trump and Others

District of Columbia Attorney General Karl Racine has declared that he is considering arresting President Donald Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks with inciting the violent invasion of the U.S. Capitol.  He noted that, while the Justice Department does not believe you can charge a sitting president, he can do so in a matter of days. Ironically, I believe Trump can be indicted immediately as a constitutional matter but that his prosecution would ultimately collapse on free speech grounds.

Continue reading “DC Attorney General Looking Into Arresting Trump and Others”

How A Snap Impeachment Could Shatter Our Constitutional Balance

Below is my column in the Hill newspaper on my concerns over the planned “snap impeachment” this year.  In my view, impeaching on the speech alone would raise serious concerns over the use of impeachment in the future. Many Democrats, including members of Congress, refused to accept Trump as the legitimate president when he was elected and refused to do so as rioting broke out at the inauguration.  Many of the same members have used the same type of rhetoric to “take back the country” and “fight for the country.”  The concern is that this impeachment will not only create precedent for an expedited pathway of “snap impeachments” but allow future Congresses to impeach presidents for actions of their supporters.  The point of this column is to call for greater caution and deliberation before we take this step to consider the basis and implications of this impeachment.  As with the calls to use the 25th Amendment, there are real dangers to any opportunistic or hurried use of this option.  There is also the alternative of a joint and bipartisan condemnation of both houses, which would be both justified and unassailable.

As I have said, there could be evidence to support impeachment on the proposed incitement article but it would have to be found before or after the speech to show an intent to spark rioting or to allow it to continue.  As with the 25th Amendment claim, such evidence would be found from within the White House and through a traditional impeachment inquiry.

Here is the column: Continue reading “How A Snap Impeachment Could Shatter Our Constitutional Balance”