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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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:
Continue reading “The Johnson Fallacy: Why Dershowitz Is Wrong About The Prevailing Argument In the Johnson Trial”
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.
Continue reading “Nadler and The Johnson Fallacy”
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:
Continue reading “A “Lovely, Knotty Problem”: Is The House Impeachment Case On A Collision Course With The Law of Attempts?”
As I discussed yesterday in the Washington Post, the White House defense in the Senate impeachment trial is built again the dubious constitutional argument that a president cannot be impeached without an alleged criminal case. That argument will be presented by Harvard Law Professor Alan Dershowitz but it is based, in my view, on a flawed reading of both impeachment and specifically the trial if Andrew Johnson. It was a mistake that will make it more difficult for Republican senators to sign on to a defense tied so closely to an untenable constitutional argument. Today, more Republican senators, including Sen. Lindsay Graham, came forward to say that they categorically reject the interpretation. Even more concerning was the response of President Donald Trump when asked if abuse of power can be an impeachable offense. He responded that “it depends.” That is actually the correct answer but it is not the position being taken by the White House on the Senate floor.
Continue reading ““It Depends”: Trump Casts Doubt On White House Legal Theory As Republican Senators Declare It Invalid”
Near midnight, the House managers and White House legal team erupted into name calling and recriminations. The confrontation led to Chief Justice John Roberts to admonish both sides and remind them that this is supposed to be the “world’s most deliberative body” and that “those addressing the Senate should remember where they are.” He also repeated a ruling from the 1905 trial of Judge Charles Swayne that there should be no accusations of “pettifogging.” With those words, the pettifog (bickering over trifles and petty disputes) dissipated from the chambers.
Continue reading “No Pettifogging: Roberts Admonishes Both Legal Teams After Late Night Outburst”
Below is my column on history — and some dubious historical claims — related to Senate impeachment trials. As with the conflicting position on witnesses of some senators, the growing narrative in the media that Republicans senators have departed from the tradition of the Senate in commenting on trial has more hypocrisy than history behind it. I have repeatedly encouraged senators not to discuss the evidence or their likely votes, but that is a rule honored historically in the breach by members of this curious trial jury.
Here is column: Continue reading “What History Really Tells Us About Senate Trials”
I have been writing on the obvious relevance of Hunter Biden as a defense witness and the equally obvious hypocrisy of some Democrats in demanding their own witnesses while refusing to consider key White House witnesses. Now. House Judiciary Chairman Rep. Jerry Nadler, D-N.Y., has suggested that, if a trade is needed to secure House witnesses, the managers will not agree to any witnesses if Hunter Biden is part of the deal. If true, is the House prepared to give up on proving its case to protect the Bidens from the ignoble moment of answering questions about the Ukraine contract? That is a considerable price to pay to protect Joe Biden. It is also another reason why the decision to rush the impeachment vote was such a historic blunder by Speaker Nancy Pelosi. If they had waited a couple months as I called for in my testimony, they could have called these witnesses and not handed over control to the Senate. Instead, they impeached by Christmas and then waited a month. Continue reading “Nadler: Hunter Biden Must Not Be Called”
Rep. Jason Crow, D-Colo., will be one of the seven Democratic impeachment managers prosecuting President Trump this week in his Senate trial. However, he seems a tad unclear on what the trial is about or at least what the defendant is facing as the allegations of impeachable conduct. Crow declared on CNN’s State of the Union that Trump was really guilty of bribery. The problem is that bribery was rejected as an article of impeachment. Not only is it grossly unfair to go to trial while alluding to uncharged conduct, it is especially bizarre when the Supreme Court seems prepared to reaffirm the very case law that I cited earlier in rejecting such expansive interpretations.
Continue reading “House Manager Declares President Guilty Of . . . Attempted Bribery”
Below is my column in the Washington Post on the real possibility that the Supreme Court could be pulled into the Senate impeachment trial if witnesses are allowed. If you hated Bush v. Gore, this could be one sequel that you will not want to see. Certainly few on the Court are eager to play a role in the possible removal of an American president.
Here is the column: Continue reading “How The Supreme Court Could Be Pulled Into The Trump Impeachment”
I have long respected Sen. Chris Coons (D, Del.) as a highly intelligent and effective senator. I was surprised today to be watching Michael Smercomish (who I also respect greatly) to hear Sen. Coons following the party line in arguing implausibly that Hunter Biden is not a relevant witness in any trial despite his centrality to the Trump defense. I previously addressed how Biden would be deemed relevant in a conventional trial and Smercomish quoted one of my Washington Post column at length to offer the opposing view. Sen. Coons responded not by addressing the relevancy argument but by dismissing such arguments as clever lawyering and “a stretch . . . a leap of logic worthy of Evel Knievel.” I should note that this analogy was lost on my youngest son, Aidan, who immediately asked “who is Evel Knievel?” When I explained, he responded, “isn’t that a good comparison?” Continue reading “A Leap or Perpetuating Evel? A Response To Sen. Chris Coons”
Below is my column on Elizabeth Warren and recent campaign promises that raise serious constitutional and legal questions. It is striking how some elements despised in President Donald Trump seems celebrated in Elizabeth Warren.
Here is the column:
Continue reading “Elizabeth Warren Moves Bigly To Out-Trump Trump”
We recently discussed the defection of Iran’s only Olympic female medalist due to the continuing discrimination and repression of women in that country. Now, Iranian chess master and referee, Shohreh Bayat, 32, has refused to return to Iran after pictures emerged of her without a hijab caused a controversy in the Islamic Republic. The decision is another painful example of the struggle of women under Islamic laws that deny them basic human rights.
Continue reading “Iranian Chess Master Refuses To Return After Being Photographed Without Required Hijab”
There could be a curious constitutional challenge brewing after the Virginia Senate Privileges and Elections committee voted to report the ERA to the floor of the Senate on Wednesday. That would be the 38th state to ratify but the vote ignores two glaring problems. First, the deadline for ratification passed 38 years ago and five states that approved the ERA have since rescinded their ratification.
Continue reading “Virginia Moves To Ratify Equal Rights Amendment . . . 38 Years After Expiration”
Below is my column in The Hill Newspaper on the blunder by Speaker Nancy Pelosi of not submitting the impeachment case to the Senate — a mistake that now threatens not just the trial but the rules for impeachment trials.
On Sunday, Pelosi went largely unchallenged in her obviously incorrect claim that the House is still in court seeking witnesses in the impeachment. The House is litigating pre-impeachment witnesses, but has never sought to subpoena, let alone compel, key witnesses in the impeachment from John Bolton to Rudy Giuliani to others with direct knowledge of any alleged quid pro quo. Indeed, the House has done nothing for four weeks after the vote – a vote that I strongly discouraged in favor of spending a couple months seeking these witnesses and/or court orders. Now Pelosi is actually suggesting that they could still seek the witnesses while the House does nothing. It remains the most baffling blunder of the impeachment.
Here is the column:
Continue reading “Pelosi’s Blunder: How The House Destroyed Its Own Case For Impeachment”