Category: Constitutional Law

Columns, Congress, Constitutional Law, Politics

Ruling On The Record: The Senate’s Looming Prudential Questions Could Weigh Heavily With Members On Witnesses and Conviction

Below is my (expanded) column in the Hill on the prudential (as opposed to the constitutional) concerns raised by the second Trump impeachment trial. Senators will have to resolve these questions before reaching the merits.  The prudential concerns may also weigh heavily in the possible rejection of witnesses after the snap impeachment. The House blundered by leaving the record and witnesses entirely to the Senate to develop. The Senate could now chose to rule on the record — or lack thereof.  Even a couple days of hearings could have created a record of documents and witness accounts — and an opportunity for a formal response from the President. It could also have allowed for suggested changes on the language of the article to allow for broader support. I have no objection to removing a president on his final day, but the House should create a minimally sufficient record to support a constitutional determination of a high crime and misdemeanor.

Here is the column:

Continue reading “Ruling On The Record: The Senate’s Looming Prudential Questions Could Weigh Heavily With Members On Witnesses and Conviction” →

Academia, Constitutional Law, Media, Politics

Impeachment in the Age of Trump: Laurence Tribe’s Evolving Views Of Impeachable Conduct

Harvard Professor Laurence Tribe was on CNN last night reassuring viewers that the Constitution clearly and unequivocally allows for the trial of a former president. In what has become a signature of Tribe’s commentary, he declared any contrary view as “stupid” while engaging in gratuitous personal insults.  I have previously written about Tribe’s past personal attacks on those who hold opposing political or legal views. While such attacks thrill many on social media, it should have no place among academics. What is more notable however is how Tribe’s views have changed since the Clinton impeachment when we testified at the impeachment hearing of constitutional experts. While he once questioned whether Bill Clinton could be impeached for a murder unrelated to his official conduct, Tribe has suggested that Trump could be impeached for a tweet alleging criminal misconduct by Barack Obama.

Continue reading “Impeachment in the Age of Trump: Laurence Tribe’s Evolving Views Of Impeachable Conduct” →

Bizarre, Constitutional Law, Politics, Society

Elizabeth Warren Calls Reporter’s Concerns Over A Wealth Tax As A “Bluff”

Sen. Elizabeth Warren (D., Mass.) was back on the airways this week touting her signature “wealth tax” in a sharp exchange with CNBC’s “Closing Bell” host Sarah Eisen. I have previously written about the constitutional concerns over a true wealth (as opposed to an income) tax, the exchange concerned the impact of a tax on the most wealthy. Warren ridiculed the notion of the wealthy leaving the country as a mere “bluff” meant to deter her and others from forcing the wealthy to pay their fair share.

Continue reading “Elizabeth Warren Calls Reporter’s Concerns Over A Wealth Tax As A “Bluff”” →

Congress, Constitutional Law

Democrats Introduce Senate Bill To Make D.C. The 51st State

Sen. Tom Carper (D-Del.) and other Democratic senators are introducing a bill for D.C. statehood today, a proposal with heavy opposition in the public in continuing polls.  Indeed, the bill was one of the reasons that members and advocates demanded the killing of the filibuster rule to force through the change in status based on a bare majority. If successful, it would give the Democrats two more senators in a city-state that will expected to remain reliably blue.  I have testified repeatedly on this issue.  There are strong arguments for changing the status of the District and statehood is a viable option. It would clearly be constitutional unlike past proposals. The question is whether it is the best option for the country.  Roughly 20 years ago, I proposed a “modified retrocession plan” that would be an alternative if the Congress wanted full voting rights for citizens of the District. Continue reading “Democrats Introduce Senate Bill To Make D.C. The 51st State” →

Constitutional Law, Media, Politics

“Sua Sponte”: Critics and Veterans Slam Media Attack On Sen. Cotton’s Service Claims

There is an ongoing controversy triggered by an article in Salon suggesting that Sen. Tom Cotton had lied about being an Army Ranger in describing his military service. The Salon article by Roger Sullenberger claimed that Arkansas senator Tom Cotton “felt compelled to repeatedly falsify that honorable military record.” It is an accusation that borders on a claim of stolen valor and could not be more insulting, particularly for someone with a highly distinguished military service record. The article has been denounced as part of a smear campaign by conservative sites like National Review but also veterans as unfair and inaccurate.

Ironically, the regimental motto of the Rangers is the Latin phrase sua sponte, or “of their own accord.” There appears debate on whose accord is controlling on such questions.

Continue reading ““Sua Sponte”: Critics and Veterans Slam Media Attack On Sen. Cotton’s Service Claims” →

Congress, Constitutional Law

“Dead Letter”: Almost Half Of The Senate Votes In Support Of Motion Challenging The Constitutionality Of A Second Trump Trial

In a critical vote at the start of the second Trump impeachment trial, almost half of the Senate voted in favor of a motion by Sen. Rand Paul challenging the constitutionality of an impeachment trial for a former president. The motion was subject to a tabling motion, making this a procedural vote and does not necessarily lock in any member. However, it was the first test of the view of the body on this unresolved question. After spending a good amount of time with all of the Republican senators just before the vote, I was not surprised by the 45-55 vote. Members on both sides of this issue had a good faith and civil exchange on the historical and constitutional basis for such a trial. Figures ranging from President Joe Biden to Sen. Susan Collins (R., Maine) have said that they believe it is clear that there are insufficient votes for conviction and that Donald Trump is likely to be acquitted. Other senators are now calling the trial a “dead letter” or “dead on arrival.“

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Congress, Constitutional Law, Free Speech, Media, Politics, Society

Twitter Summons “The Birdwatchers” In Expanding Campaign Against “Misinformation”

Twitter Logo

With much fanfare (and catchy background music) Twitter has launched the Birdwatch program, a platform that seeks to enlist the “community” to identify and comment on misinformation contained in tweets.  The company will initially select 1,000 such “Birdwatchers” in its monitoring of information exchanged on its once neutral platform.  Not surprisingly, many of us are not thrilled by the program. While the programs does not allow direct removal of tweets, it is clearly designed to flag tweets that the majority views as misleading. That can then be used by Twitter to further support its expanding censorship of information on the Internet.

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Columns, Congress, Constitutional Law, Criminal law, Politics

Do The Democrats Really Want Unity?

Below is my column in the Hill on the increasingly divisive rhetoric and actions taken on Capitol Hill. Rather than plot a course to between greater unity, many are seeking to muscle through extreme measures that will only further aggravate and deepen our divisions.  The media from the New York Times to the Los Angeles Times have run editorials encouraging aggressive moves to secure control of the Senate, including the ending of the filibuster. That move would make every vote a muscle play — producing sweeping changes in a country that is clearly divided and seeking political compromise.

Here is the column: Continue reading “Do The Democrats Really Want Unity?” →

Academia, Constitutional Law, Free Speech, Media, Politics

Why Burn Books When You Can Ban Them? Writers and Publishers Embrace Blacklisting In An Expanding American Anti-Free Speech Movement

Hundreds of publishing officials, professors, and academics have signed a petition to blacklist Trump administration alumni from receiving book deals.  It is the latest step in a rapidly expanding anti-free speech movement in the United States. In the wake of the Capitol riot, Democratic members and others are calling for a crackdown on free speech and punitive actions for those viewed as complicit with Trump. What is striking is how censorship, blacklists, and speech controls are being repackaged as righteous and virtuous. Indeed, the failure to sign such anti-free speech screeds is a precarious choice for many.  It is as easy as calling for tolerance through intolerance.  After all, why burn books if you can just effectively ban them? Continue reading “Why Burn Books When You Can Ban Them? Writers and Publishers Embrace Blacklisting In An Expanding American Anti-Free Speech Movement” →

Congress, Constitutional Law, Politics, Society

The Case Against Retroactive Impeachment Trials: A Response To The Open Letter Of Scholars

This week, a group of scholars wrote an open letter endorsing the constitutional basis for trying former President Donald Trump in a retroactive impeachment trial. The letter contains many individuals who I know and respect. I encourage you to read their case for such retroactive impeachment. As I have said in every column and posting on this subject, this is a close question upon which people of good-faith can disagree.  However, I would like to respond to the letter and offer a countervailing view. Continue reading “The Case Against Retroactive Impeachment Trials: A Response To The Open Letter Of Scholars” →

Constitutional Law, Media

Trust In The Media Hits An All-Time Low In New Polling

We have previously discussed how American journalism has been destroyed by years of openly partisan coverage in an age of echo journalism. Not surprisingly, the public has lost faith in what was once the leading nation in terms of journalistic practices and ethics. A new survey by the global communications firm Edelman (via Axios) found only 46 percent of Americans trust traditional media.  That mirrors polls by Gallup showing an even lower level of trust.  We are living in a new age of yellow journalism at a time when real journalism has never been more needed.

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Academia, Constitutional Law, Free Speech, Media, Politics

Professor Calls For The Elimination of the Republican Party and Purging “Nazified” People From Congress, Universities, and “Regular Jobs”

The media has been airing discussion of hosts and leading figures like Katie Couric on “deprogramming ” Trump supporters or treating Trump supporters as a cult, including a CNN interview with an actual “cult expert.”  Since that would include over 70 million Trump voters, the hyperbolic language can be dismissed as just more examples of our rage-filled political environment. After all, a few days after the election, a law professor declared that even questioning the Biden electoral victory was tantamount to being a holocaust denier. One professor however has taken this call even further in declaring such supporters are worse than the Nazis and heralding the need for the same type of treatment seen with the Nuremberg trials, including the apparent elimination of the Republican Party. Smith College Professor Loretta Ross, who teaches women’s and gender studies, rejected calls for unity and instead called for punitive action against supporters in Congress, universities, and “regular jobs.”

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Constitutional Law

Yes, Biden is President . . . Just A Tad Premature

I thought that the Biden inauguration was one of the most beautiful and moving in my lifetime.  It was overwhelming to listen to Lady Gaga’s rendition of the national anthem, Garth Brooks’ version of Amazing Grace, and of course the incredible poem by Amanda Gorman. That is why being a law professor sometimes complicates everything.  It is like going to a powerful movie and fixating on the legal anomalies like when a character does something not allowed under the rules of evidence.  That moment came when Joe Biden took the oath and was declared president before noon.  I was called by reporters from the Washington Post and other media outlets to ask if Biden was truly president at that time. This will only be of interest to constitutional geeks and a few journalists but he was not the president at that time.  The President remained Donald Trump until noon under the 20th Amendment. Continue reading “Yes, Biden is President . . . Just A Tad Premature” →

Constitutional Law, Politics, Society

Hail To The Chief: Joe Biden Becomes Our 46th President

Just before noon, Joseph Robinette Biden Jr. was sworn in as our 46th President.  Most of us wish him the greatest success in leading this nation and hopefully plotting a course of unity rather than division.  He could prove one of the most consequential presidents if he strives to bring this country together on policies that can garner support from both sides of our political divide. He had the reputation as a Senator when I had the pleasure of interacting with him.  That is the Joe Biden who I hope will emerge as our 46th President. Continue reading “Hail To The Chief: Joe Biden Becomes Our 46th President” →

Columns, Congress, Constitutional Law, Criminal law, Media, Politics, Society

“Everybody’s Mistakes Except My Own”: Trump’s Final Pardon List Offers A Telling Reflection On His Legacy

“I can pardon everybody’s mistakes except my own.” Those words of Cato of Elder have long been the principle guiding presidents who have resisted the temptation of issuing themselves self-pardons.  There have been ample abuses of this power, but that is one dishonor that presidents have spared the country. Despite predictions by many in the media, Trump left office without adding that ignoble distinction. He did not grant clemency to himself, his family, or close associates like Rudy Giuliani. What is so telling is that we are so shellshocked from the last four years that this act of restraint was a reason for celebration and praise.  Notably, the lack of the self-pardon might not be a welcomed by critics as it may appear. There is now no impediment to a charge for incitement, a much-touted possible charge that some of us believe would fail ultimately in the courts on either the trial or appellate levels.

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