Category: Constitutional Law

Columns, Congress, Constitutional Law

Rehnquist Versus Chase: History Offers Roberts Few Models For Defining His Role

Below is my column in The Hill newspaper on the uncertain role of Chief Justice John Roberts as the presiding officer of the Senate impeachment trial. I have already raised some questions over Roberts’ refusal to read a question from Sen. Rand Paul after Paul insisted that the question did not ask for or use the identity of the whistleblower. Even more significant questions could arise as early as today.

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Bizarre, Congress, Constitutional Law

Schiff Repeats Flawed Position That A Two-Thirds Vote Might Be Needed To Overrule The Chief Justice

I recently wrote about the clearly incorrect theory of Neil Katyal that a two-thirds vote would be needed to overturn a ruling of the Chief Justice on calling witnesses. What was astonishing is not just that the New York Times gave credence to the theory but that the lead House manager would reference it last night. It is wildly at odds with the rules and the traditions governing impeachment. Strong arguments could be raised that the presiding officer cannot even break ties on such issues (despite the fact that Chief Justice Salmon Chase maintained such a robust view). With the confrontation today between Chief Justice Roberts and Sen. Rand Paul, this suggestion has bearing on possible votes today or tomorrow.

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Columns, Congress, Constitutional Law, Media

Was The Bolton Leak Too Perfect? The Senate Grapples With The First Perry Mason Moment Of A Presidential Impeachment
YouTube Screenshot

Below is my column in the Washington Post on the still unfolding drama surrounding the leaked contents of the book by former National Security Adviser John Bolton.

Here is the column:

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Congress, Constitutional Law, Courts

“If I Have To Fight For Recognition, I Will”: Paul and Roberts On Collision Course Over Whistleblower Questions [UPDATED]

Yesterday’s question and answer period was a largely choreographed exercise with legal teams spontaneously responding to questions with preset video clips and visual displays. However, there was one major but largely overlooked moment that raises some serious issues over the authority of the presiding officer vis-a-vis the Senate. In the midst of the questions, Robert spiked a question from Sen. Rand Paul (R, Ky). It concerned the whistleblower and the underlying legal premise for barring the question could prove controversial today. UPDATE: Roberts again refused to read the question of Sen. Paul. After the Chief Justice refused to ask his question, Rand walked out of the Senate.

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Congress, Constitutional Law, Criminal law, Politics

Mutually Assured Destruction: Unable To Block Witnesses, The GOP Moves To “Plan B”

In my recent Washington Post column, I stated that the Bolton leak accomplished its obvious design to throw the White House defense into disarray and to secure the votes for witnesses. However, I noted that the success could come at a price through ” a mutually assured destruction option: allow both sides to lay waste to each other and leave it to the public to pick through the ruins.” That appears to be the “Plan B” being discussed by Republicans in a game of chicken over witnesses.

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Academia, Congress, Constitutional Law, Media

Tribe: The Choice is Now Between Witnesses and Dictatorship

While I disagreed with Harvard Professor Alan Dershowitz on this theory of impeachment, I recently praised his presentation in the Senate as a cogent and well-constructed case for the defense. Clearly, his colleague Harvard Professor Laurence Tribe does not share my view. He denounced Dershowitz’s argument as “remarkably absurd and extreme and dangerous.” In this presentation, Dershowitz defended his own switch on the issue of the prerequisite of criminality for impeachment by noting that Tribe had also switched his view. Tribe went further to declare that the choice was now between witnesses and “dictatorship.” Even as someone who favors witnesses, I fail to see the imminent danger of dictatorship on the issue. Indeed, I understand the reluctance over witnesses aside from any desire to protect Trump. I believe senators have a legitimate interest in not creating precedent allowing the House to impeachment on such a slipshod and incomplete record. That is why I proposed an alternative solution.

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Columns, Congress, Constitutional Law, Criminal law

Choosing the Unpalatable Over The Disastrous: Shoot Article II and Call The Witnesses

Below is my column in the Washington Post on the best course for the House managers in securing witnesses. The column was posted before the Bolton leak, which may now secure the needed four votes of swing Republican senators. However, Article II is as dead as Dillinger. Indeed it was dead on arrival. The two days of White House argument wiped out what little support existed for the charge given the decision to rush this impeachment and then impeach a president for raising executive privileges and immunities. The strongest material of the White House was directed at this exceedingly weak and unwarranted article of impeachment. Democratic senators speak a great deal of the need for bipartisanship . . . for Republicans. It is time for those same senators to show that they are equally expected and capable of putting aside party for principle. It is time for Democratic senators to join in the call to reject Article II.

Here is the column:

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Congress, Constitutional Law, Media

The Yawn and the Relentless: Viewers Choose Day Time Soaps Over The Impeachment Trial

         In the 1960s, many of the Senators heard the anti-war slogan of “what if they held a war and nobody came?” This week, they finally learned the answer . . . at least in holding an impeachment.  Senators have expressed surprise at the empty seats in the Senate gallery.  Sen. James Inhofe (R-Okla.) said he was “really surprised . . .  because this is kind of historic.”  It is but the members are increasingly making history alone. Not only are spectators sparse, but the television audience has been declining to the point that, by the second day, the networks quickly switched over to shows in greater demand like The Young and The Restless.  Nielson rating showed that the soaps were twice as popular as the trial.

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Academia, Congress, Constitutional Law, Lawyering

In Defense of Dershowitz: Critics Slam Harvard Professor For Ethical Representation and Intellectual Opinions
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Alan Dershowitz is hardly someone in need of the defense of others. However, there is a disturbing level of acrimony and personal attacks directed at the retired Harvard professor after he agreed to speak in defense of President Donald Trump. As I tweeted last night, I have strong disagreements with Dershowitz over his theory that impeachment articles must be based on criminal acts. However, I thought his presentation last night was outstanding. It was powerfully presented and he made some compelling points. While we disagree, it is a presentation that everyone should have watched. The shame is that few people are watching and even fewer are listening. To make matters worse, liberals (who pride themselves on supporting individual rights) are attacking Dershowitz for defending unpopular individuals like O.J. Simpson and Jeffrey Epstein. That is what criminal defense attorneys do. They represent accused and often highly unpopular individuals. It is the rankest form of attack to suggest that a lawyer defending a client is somehow tainted by the crimes alleged in the case.

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Congress, Constitutional Law, Courts, Criminal law

The Times Editorial Misstates The Law In Call For Roberts To Issue A Subpoena To Bolton

The news of the Bolton book leak has electrified Washington and, as intended, has rekindled calls for witnesses. I have long stated a preference for witnesses despite my criticism of the historic blunder of the House leadership in rushing this impeachment forward on an incomplete record. However, the media has now latched on to a column in the New York Times by Neal K. Katyal, Joshua A. Geltzer and Mickey Edwards that Chief Justice Roberts can not only order a subpoena for Bolton solely on the request of the House managers but that his decision cannot be overturned by anything less than a two-thirds vote. I believe that the premise of the argument on the vote is highly flawed and should not be seriously entertained by either the House managers or the Chief Justice.

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Columns, Congress, Constitutional Law, Lawyering, Politics

Why Neither Side Is Really Trying To Win This Trump Impeachment Trial

Below is my column in The Hill newspaper on the adoption of language and theories in the impeachment trial that has alienated key senators. Neither side appears to be tailoring their cases to secure bipartisan votes.

Here is the column:

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Academia, Columns, Congress, Constitutional Law

The White House Hail Mary: Dershowitz To Argue That Trump Impeachment Is Unconstitutional For Lack Of A Crime

Today we are likely to hear the constitutional arguments in defense of President Donald Trump, including the highly controversial theory of Harvard Professor Alan Dershowitz that an impeachment must be based on an alleged crime. I have previously discussed my disagreement with Dershowitz’s use of the trial of Andrew Johnson to support this claim.

Below is a column that ran in the BBC on my long-standing opposition to that theory.

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

The Johnson Fallacy: Why Dershowitz Is Wrong About The Prevailing Argument In the Johnson Trial

Below is my column in The Hill newspaper on the Andrew Johnson impeachment trial and its reliance by Harvard Professor Alan Dershowitz to support the argument that impeachable offenses must be based on criminal conduct.

Here is the column:

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Congress, Constitutional Law, Politics

Nadler and The Johnson Fallacy

It seems that the Andrew Johnson trial is finally back in vogue. It just shows that, like ties, if you wait long enough everything comes back into style.

I have written about my disagreement with Harvard Professor Alan Dershowitz‘s reliance on the trial of Andrew Johnson for support of his theory that impeachable offenses must involve criminal acts. Now, I have to raise similar objections to the other side in its reliance on the trial, specifically the comments of House manager and House Judiciary Committee Chairman Jerrold Nadler.

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Columns, Congress, Constitutional Law, Criminal law

A “Lovely, Knotty Problem”: Is The House Impeachment Case On A Collision Course With The Law of Attempts?

Below is my column in Washington Post on a little discussed issue lingering in the hundreds of pages of briefing in the Trump Senate trial: what to do with an attempt to abuse power. Many of us have been discussing whether abuse of power is an impeachable offense. The White House maintains that it is not because articles of impeachment must be based on criminal acts. Many of us have criticized that theory as untenable and unsupportable in the history of English and American impeachments. However, the more interesting question is not what to do with an abuse of power but an attempted abuse of power.

Here is the column:

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