Category: Constitutional Law

Be Careful With The 25th Amendment

Below is my column in USA Today on the call to use the 25th Amendment to “remove” President Donald Trump. As a threshold matter, the 25th Amendment does not “remove” a president but rather shifts his powers to the Vice President. The only method for removal of a president from office is impeachment. The 25th Amendment refers to the Vice President as “acting” in his capacity.  However, “removal” is a common way of expressing the substitution under the 25th Amendment. The main problem is not the nomenclature but the standard. Section 4 actions under the amendment are designed for physical or mental incapacities. Such evidence may exist but it has not been disclosed. Vice President Mike Pence would need to disclose such evidence of mental illness or irrationality in the President. The speech alone is not a basis for a 25th Amendment “removal.”

This week, Speaker Nancy Pelosi is continuing to call for the invocation of the 25th Amendment or impeachment as alternative courses of action.  She and others have expressed a preference for the 25th Amendment due to the limited time remaining before President Trump leaves office.  However, neither time nor the text for a 25th Amendment action is supportive in this effort. More importantly, without such clear evidence of mental incapacity, the use of the 25th Amendment could introduce even greater instability in our system.

Here is the column: Continue reading “Be Careful With The 25th Amendment”

A Crisis Of Faith: Why We Should Be Worried More About A Desecration Than An Insurrection

Below is my column in the Hill on the riot at Congress and its implications for our country.  As shown by the unfounded rush for a “snap impeachment,” we are experiencing a crisis of faith in this country — not only in our Constitution but ourselves.  Pushing for a snap vote (and snap judgment) on these issues will only exacerbate our divisions. This is a time for deliberative, not impulsive, action in Congress.

Here is the column:

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Say It Ain’t So, Joe: The Failure of Biden To Denounce This Impeachment Is A Missed Presidential Opportunity

This week, President-elect Joe Biden made a highly commendable decision to nominate Judge Merrick Garland as the next United States Attorney General. Like many, I praised Garland as an outstanding choice and a move that advanced Biden’s earlier pledge to seek unity. That is why I was so disappointed in Biden refusing to take a position on the effort to impeach Donald Trump next week. As with his equally inexplicable refusal to take a stand on court packing, Biden’s silence on this clearly unsupportable “snap impeachment” was a missed opportunity to show real leadership when it matters most.  It is not popular to oppose this impeachment, but leadership often demands that presidents take unpopular but correct positions. Continue reading “Say It Ain’t So, Joe: The Failure of Biden To Denounce This Impeachment Is A Missed Presidential Opportunity”

Washington Post Columnist Calls For Expulsion Of Members Who Challenged Electoral Votes

Washington Post columnist Jennifer Rubin is calling for the expulsion of Republican members for challenging the electoral votes this week as “sedition.”  From the outset, I opposed this challenge as unfounded.  However, think about this demand (which has been raised by others).  Rubin wants to expel members who joined challenges allowed under a federal law (on the very same grounds that Democrats have made in past elections). Indeed, she declares “Every Republican bears a responsibility for what happened on Wednesday, whether or not they participated in a seditious attempt to overthrow our democracy.” So Republicans who opposed the challenge and denounced the violence should still be punished or blamed?

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I Hate Federal Commissions, But Americans Need One To Look Into The 2020 Election

Below is my column in USA Today on the need for a federal commission on the 2020 election. While I opposed the challenge and the call for the ten-day commission, I do believe that a real commission is warranted.  Indeed, the violence yesterday only further shows the deep divisions in this country over these lingering questions. However, there must be the commitment to a real commission — not another placebo commission

Here is the column: Continue reading “I Hate Federal Commissions, But Americans Need One To Look Into The 2020 Election”

We Must Talk About Constitutional Issues In The Election Certification

Below is my column in the Hill on today’s challenge to the counting of electoral votes in Congress.  The challenge raises a long-standing debate over the authority of Congress in making such challenges.  What is clear in my view is that Vice President Michael Pence does not have the unilateral authority claimed by President Donald Trump to simply “send back” electoral votes for particular states. Nothing in the Constitution suggests such authority and the Electoral Count Act expressly contradicts such claimed authority. Indeed, such an act could bring an unprecedented challenge and judicial intervention in the certification of the presidential election.

What is odd is the President’s continued assurance to his supporters that this is a possible path to victory. Shortly after the election, I wrote that I thought the President was laying the foundations for a “Death Star” strategy but that it would not likely succeed. To make that Luke Skywalker shot, he needed a perfect alignment of elements. None of those elements are present today.  The over-hearted rhetoric from the President and his critics however are magnifying our divisions and anger.

Here is the column:

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Sioux Tribe Imposes Language Criterion For Priority Vaccinations

There is a controversy developing in North and South Dakota where The Standing Rock Sioux tribe is prioritizing speakers of its native languages for its COVID-19 vaccine distribution. The tribe insists that it wants to protect those who can preserve its language.  However, that is the imposition of a language criterion over those categories set out by the CDC for health workers, the elderly and most at risk individuals. The clear import is that prioritized individuals under the CDC guidelines could become infected and die because of the desire to protect those viewed as greater “assets” to the tribe. Continue reading “Sioux Tribe Imposes Language Criterion For Priority Vaccinations”

“Treason Is A Matter Of Dates”: Democrats Denounce Republicans For The Same Challenge They Previously Made To Republican Presidents

Napoleon once said “treason is a matter of dates.” The Democrats seem to have taken Napoleon’s words to heart in declaring Republicans traitors or anti-Democratic in their planned challenge the certification of electoral votes next week. Both the media and Democratic members have advanced this narrative despite Democratic members repeatedly raising such challenges in the past. In the few acknowledgments of that history, Democrats seem to be advancing a simple and familiar defense: Trump. Once again, open hypocrisy is negated by Trumpunity. After all, they cannot be anti-Democratic because they are Democrats. That conclusory position was evident in the spin this week on CNN by former California Sen. Barbara Boxer who led such a challenge to the 2004 election results. Continue reading ““Treason Is A Matter Of Dates”: Democrats Denounce Republicans For The Same Challenge They Previously Made To Republican Presidents”

Law’s Ahab: Weissmann Makes The Case For A Trump Self-Pardon

Below is my column in the Hill on claims by former Deputy Special Counsel Andrew Weissmann that the recent pardons by President Donald Trump reinforce a possible obstruction of justice case against him.  We have previously discussed how Weissmann has proven critics correct in their description of his animosity and bias toward Trump.  For my part, his book and recent statements reinforce the view of an abusive prosecutor, particularly in his untethered view of obstruction.  Indeed, Weissmann seems intent on making the best case for Trump to grant himself a self-pardon.  He is calling for prosecutors to use grand juries to pursue Trump and others in an unrelenting campaign based on unfounded legal theories.

Here is the column:

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Cass Sunstein Calls For Broader Use Of Defamation Lawsuit To Curtail “Fake News”

We recently discussed how Trump critics appear to be adopting his tactics and rhetoric as they prepare to take over the Executive Branch and possibly Congress. There is a sense of “Trumpunity,” a license to use any means in the aftermath of the Trump Administration. Now, Harvard Law Professor and Bloomberg columnist has added a Trump-like call for the use of defamation lawsuit to combat “fake news.” That call for defamation actions to hammer media has been one of the most consistent and criticized Trump positions. The call for such media lawsuit is no less concerning when it comes from a liberal like Sunstein.

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The Case For and Against The Appointment Of A Special Counsel In The Hunter Biden Investigation

Below is my column in the Hill on grounds for and against the appointment of a Special Counsel in the Hunter Biden investigation. By refusing address the underlying allegations, Joe Biden is magnifying the concerns over possible conflicts of interest and his own possible exposure. Biden is maintaining that he will not ask potential Justice Department nominees about the investigation but he is also refusing to answer specific questions. In the meantime, he appeared to confirm that he views the investigation to be Russian disinformation.  That is a familiar profile in a scandal at the start of an Administration and Democrats are likely to face their own prior calls to investigate the Trump family on such questions of foreign influence.

Here is the column: Continue reading “The Case For and Against The Appointment Of A Special Counsel In The Hunter Biden Investigation”

Former Rep. Hill Files Lawsuit Against Former Husband And Media Over Public Disclosures

In 2019, former Rep. Katie Hill resigned from Congress after the disclosure of sexual relations with a staff member. Ordinarily, the media and various public interest groups would have been outraged and unrelenting in their “MeToo” coverage, particularly with a young staffer recently out of college. In the case of Hill, however ,media outlets like MSNBC picked up on Hill’s claim that she was subjected to   a “double standard” and a “misogynistic culture.” It was the ultimate form of ironic hypocrisy where a politician claimed a double standard in being forced to resign — seeking an accommodation that was wisely denied to male colleagues in past scandals. Various male politicians from Sen. Bob Packwood to Rep. Trent Franks have resigned under such scandals. Sen. Al Franken resigned for acts that did not involve an actual sexual affair. Hill abused her position of power but somehow converted that abuse into a women’s rights issue. Hill sold that narrative and is now bizarrely treated by many as a victim. Now, Hill is suing over the coverage of her scandal in a lawsuit that challenges core protections for the media. Continue reading “Former Rep. Hill Files Lawsuit Against Former Husband And Media Over Public Disclosures”

“Vote Reparations”: Law Professor Calls For The Votes of Black Americans To Count Twice

Brandon Hasbrouck is an assistant professor at Washington and Lee University School of Law, has written an article in The Nation calling for a new form of reparations based on voting. Featured prominently on the law school’s website, the article pushes a similar proposal made in the Washington Post in 2015  by Theodore Johnson, a senior fellow at the Brennan Center for Justice. Johnson wanted black votes to be worth five-thirds that of non-black votes.  Ironically, the proposals would upend decades of civil rights litigation to defend the “one man, one vote” principle.

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Trumpunity: How Democrats Are Adopting Trump Rhetoric and Tactics For The Biden Presidency

Below is my column in the Hill newspaper on the adoption of Trump-like rhetoric and tactics by Democrats, who seem to believe they have a strange type of immunity in the post-Trump world.

Here is the column: Continue reading “Trumpunity: How Democrats Are Adopting Trump Rhetoric and Tactics For The Biden Presidency”

Unlearning The Constitution: University President Declares That Biden Can “Unpardon” Trump

We have repeatedly discussed how legal experts over the last four years have adopted ever expansive interpretations of statutory and constitutional provisions to argue that President Donald Trump could be indicted or impeached on a myriad of different grounds. This includes the reliance on interpretations long rejected by the Supreme Court.  Some issues are manifestly closer like the long-standing question of presidential self-pardons. While I have long maintained (before the Trump Administration) that a president can self-pardon, I have always said that this is a question with good-faith arguments on both sides. Recently, however, experts have brought the same claims of clarity on this question to assure the public that the argument for self-pardons is “incoherent and incompatible” with the Constitution. Ken Gormley, president of Duquesne University, is one of those who supported impeachment and rejected any basis for self-pardons. He has now however gone one better and claimed that Joe Biden can “unpardon” Trump if he does grant himself a self-pardon.

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