Category: Constitutional Law

Academia, Bizarre, Congress, Constitutional Law, Courts

History and Its Revision: The Use and Misuse Of The Nixon Precedent

Professor Ken Hughes of University of Virginia recently penned a column to denounce the utter partisanship and lack of integrity in Washington as demonstrated by the failure of a single Republican to support the impeachment of President Donald Trump. He did not, of course, view the virtually unanimous vote by Democrats as partisan. Just the Republicans. The reason appears to be the view that the Democrats are right and therefore the Republicans are utter partisan hacks. To make his case, Professor Hughes makes equally selective observations about the history of impeachment, including singling out a line from my testimony before the House Judiciary Committee.

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Congress, Constitutional Law, Media, Politics, Society

“It’s UnAmerican. It’s Unconstitutional”: Utah Senator Denounces The Iran Briefing As “Absolutely Insane”

An interesting thing occurred on Capitol Hill yesterday. A U.S. Senator demanded to be treated as an actual U.S. Senator. After the briefing by the Trump Administration on the “imminent” threat behind the killing of Iranian general Qasem Soleimanim, Utah Republican Sen. Mike Lee came out of the hearing irate at what he described as the “worst military briefing” he had ever witnessed. Lee is one of President Donald Trump’s most committed supporters and a hawk. However, he has a quaint notion of being part of an independent branch of government with independent obligations under federal law. Lee refused to simply rubber stamp the position of the White House and denounced the “briefing” as offering no real evidence and little beyond platitudes. Sen. Rand Paul joined Lee in criticizing the briefing as clearly insufficient. In response to this principled position, both have been accused of “empowering the enemy” by Sen. Lindsey Graham. Defending the authority and functions of Congress is precisely what the Framers demanded in our system of checks and balances.

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Congress, Constitutional Law, Courts, Media, Politics

The Bolton Factor: Pressure Builds For Witnesses In The Senate Trial

My column today in the Washington Post explores the possibility of witnesses in the Senate impeachment trial and specifically what the Senate might do if the White House demanded a clearly relevant defense witness named Hunter Biden. As the column was coming out, former national security adviser John Bolton announced that, if subpoenaed, he is “prepared to testify” before a Senate trial. Some of us have been saying for months that Bolton was signaling to the point of screaming that he was eager to testify. Nevertheless, the House refused to subpoena him, let alone seek to compel his testimony. It was the same counterintuitive position that led to the House to withdraw its subpoena for top Bolton aide, Charles Kupperman. Bolton’s announcement only highlights the baffling blunder of the House in rushing this impeachment before creating a complete and compelling record for removal. Instead, it effectively handed over control of the case — and completion of its case — to the Senate and the opposing party.

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Columns, Congress, Constitutional Law, Media, Politics

“How Did It Get So Late So Soon?”: The Democratic Impeachment Erodes With Opinions and Time

Below is my column in The Hill newspaper on the recent decision on the appearance of a key witness, Charles Kupperman, in the House investigation. The abandonment of the subpoena on Kupperman highlights what will be a major question in the Senate of why the Senate should demand witnesses who the House failed to seek to compel. By rushing the impeachment and forcing a vote before Christmas, the House gave up control over an incomplete and insufficient case for removal. It gave up that control to a chamber controlled by the opposing party. Speaker Nancy Pelosi’s attempt to game the system has not achieved any concession from Senate Majority Leader Mitch McConnell. Few of us believed it would. Now the House will proceed on the thinnest record ever presented in a modern presidential impeachment trial.

Here is the column:

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Congress, Constitutional Law, Military

Trump Orders Defense Department To Publicly Confirm Assassination Of Iranian General

In a break from long-standing intelligence practices, President Donald Trump ordered the Defense Department to confirm that the United States was behind the missile strike that killed Qassem Soleimani, the commander of Iran’s secretive Quds Force, and six others, including Iraqi militia commander Abu Mahdi al-Muhandis. The public acknowledgement of responsibility is a game changer. While Iran (like most of us) assumed it was the United States, the public confirmation of the assassination removes any doubt and forces Iran and Iraq to deal with a direct and official attack. International law treats the targeted killing of a ranking military figure on foreign sovereign soil as a presumptive act of war. As always however there is no shortage of hypocrisy in the condemnations from Capitol Hill.

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Academia, Columns, Congress, Constitutional Law

Pelosi’s Half Right Constitutional Claim Leaves The House All Wrong

Below is my column in The Hill newspaper on the position of Harvard Law Professor Laurence Tribe that the blocking the submission of the impeachment to the Senate by Speaker Nancy Pelosi is both constitutional and commendable. He is half right but the House is entirely wrong in its gaming of the system in this fashion.

Here is the column:

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Congress, Constitutional Law, Media, Politics

Rep. Green Tells MSNBC That The “Genesis” For Trump’s Impeachment Began Before He Was Elected

Rep. Al Green (D, Tex.) has remained the most quoted Democratic member . . . . by Republicans. Green has given Republicans quotable gems to show a long-standing and unending effort to impeach Trump from his very first day in office. His most popular GOP talking point is “I’m concerned that if we don’t impeach this president, he will get reelected.” However, Green has also said recently that the House may continue to impeach Trump and has called for an array of clearly illegitimate articles of impeachment. Now, Green has given Republicans a quote to reinforce its narrative by declaring that the “genesis” of the impeachment began before Donald Trump was even elected. That is likely to be added to the top Green quotes for the upcoming Senate trial.

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Columns, Congress, Constitutional Law, Criminal law, Lawyering

What If Monica Actually Had Taken The Stand?

Below is my column in the Wall Street Journal on the issue of witnesses at impeachment trials and how they can have a determinative impact on the outcome of such trials. The best example remains the Senate trial of Bill Clinton and the ultimate “what if.” What if Monica Lewinsky actually took the stand in the Senate trial?

Here is the column:

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Columns, Congress, Constitutional Law

The Impulse Buy Impeachment: How The Democrats Yielded To The Holiday Frenzy Over Facts

Below is my column in the Los Angeles Times on the impeachment of President Donald Trump. The failure to take a little more time to secure additional witnesses (or court orders against the Administration) has already come back to haunt the House. If the Senate now decides to try the President on the thin record of the House, the House will have given the White House an easy avenue to acquittal. If the House was not willing to seek to compel the testimony of these witnesses, it will be in a poor position to demand that the Senate now complete the record that it prematurely closed with its vote. Had they waited just a couple months, they might have been able to secure some of these witnesses, particularly if they had not burned four months without seeking to compel witnesses like Bolton or, bizarrely, withdrew its subpoena for Kupperman before a court could rule.

Here is the column:

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Academia, Constitutional Law, Media, Politics

“There’s No Impeachment”: Trump Repeats Feldman’s Flawed Interpretation Of The Constitution

I recently criticized the position of my fellow witness from the Trump impeachment hearing, Professor Noah Feldman, that Trump is not technically impeached until the articles of impeachment are referred to the Senate. I have known Noah for years and respect him but this theory is utterly without foundation in the text or history or logic of the Constitution. The theory is a chimerical conflation of the impeachment and removal provisions. President Donald Trump however has seemingly embraced the theory that he is not actually impeached. Even as mockery, Feldman’s theory should not be further referenced in my view as credible. The President’s status is clear. He stands impeached, but untried.

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Academia, Constitutional Law, Free Speech, Religion

Pakistani Professor Sentenced To Death For Blasphemy
Flag of Pakistan

We have yet another example of the perils facing academics in some Muslim countries with a death sentence handed down by a Pakistani court against Professor Junaid Hafeez, 33, because he allegedly posted derogatory remarks against Mohammed on social media. Many of our closest allies routinely flog or kill those who simply question religious dogma.

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Academia, Congress, Constitutional Law

Trump Stands Impeached: A Response To Noah Feldman

In the House Judiciary Committee, I had some fundamental disagreements with my friend Professor Noah Feldman on issues ranging from the basis for impeachment on the basis of specific crimes (bribery, extortion, campaign finance violations, and obstruction of justice) as well as his claim that the legal definition of these crimes are immaterial to their use in impeachment. Ultimately, the Judiciary Committee dropped those four theories and went forward with the two articles that I testified would be legitimate, if proven: abuse of power and obstruction of Congress.

Now, however, we have another disagreement. Feldman has written in Bloomberg News that Trump is not actually impeached until the articles of impeachment are transferred to the Senate. I disagree and believe that Feldman is conflating provisions concerning removal with those for impeachment. Frankly, I am mystified by the claim since I see no credible basis for maintaining this view under either the text or the history of the Constitution.

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Congress, Constitutional Law, Courts, Politics

Federal Appellate Court Strikes Down Obamacare’s Individual Mandate

I have long been critical of the individual mandate under the Affordable Care Act or Obamacare (See, e.g., here and here and here). Yesterday, the Fifth Circuit Court of Appeals handed down a major 2-1 ruling striking down the mandate as unconstitutional. The litigation however will continue over the viability of the rest of the Act without the individual. As discussed in an earlier column, pulling out the individual mandate creates a Jenga-like dilemma for the courts.

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