It sometimes seems that every impeachment road leads back to Warren Hastings. Previously, I wrote about Hastings in addressing the bribery theories being voiced by Democratic leaders and legal experts in the first Trump impeachment. Now Hastings is back as a historical precedent for the impeachment of former officials. As I have repeatedly in virtually every interview since the second Trump impeachment, there are good-faith arguments on the use of impeachment for former officials. However, Hastings is not particularly strong precedent beyond the obvious point that impeachment was used retroactively in Great Britain. Continue reading “Warren Hastings and the Historical Basis for Retroactive Impeachments [Updated]”
Below is my column in the Hill on why President Donald Trump might want to consider skipping the upcoming Senate trial. This is an expanded version of that column. Rumors continue to suggest that Trump is considering Rudy Giuliani as counsel — a role that would be viewed as open contempt to the Senate and, as Karl Rove noted, would increase the chances of a conviction. There is a better defense: no defense.
Here is the column:
I have long-criticized President Donald Trump for his tweets suggestions that MSNBC Joe Scarborough murdered a former aide when he was a Republican congressman two decades ago and suggested on Twitter that the two had an “affair.” The tweets are cruel for the family of Lori Klausutis but make scurrilous unproven allegations against Scarborough. Scarborough is saying that he may now sue Trump for defamation. The problem remains that Scarborough is a public figure and, as such, is subject to a high burden for defamation. What is most striking however is what Scarborough said his lawyers told him about suing earlier. The “best lawyer in New York” and the “best lawyer in New York” told him that he could not sue a sitting president. That is clearly untrue.
Below is my column in USA Today on the upcoming Senate trial of President Donald Trump. The Hill recently my second column on why the best defense of Trump could be no defense — to skip the Senate trial and force a threshold vote on the constitutionality of the trial of an ex-president.
MyPillow CEO Mike Lindell has long been a diehard supporter of President Donald Trump. Indeed, on the day of the infamous speech preceding the riot in the Capitol, Lindell told media that he was confident that the day would bring vindication for the President. The statement left many of us scratching our heads since the certification of the victory of Joe Biden was only hours away. Now, the Washington Post has blown up the notes of Lindell leaving the Oval Office, which appear to refer to the Insurrection Act and the imposition of martial law. Media reports state that President Trump “cut short his meeting with MyPillow CEO Mike Lindell within minutes, after the entrepreneur was spotted at the White House brandishing notes referencing martial law.”
There is a building campaign at Harvard to rescind the degrees of Trump officials and allies including White House Press Secretary Kayleigh McEnany, Senator Ted Cruz (R-TX), and Representative Dan Crenshaw (R-TX). This is not the only such effort to retaliate against Trump officials from blacklists to campaigns of harassment. Indeed, previously there was a demand for a ban on former Trump officials from being allowed on campus at Harvard. Recently Rep. Elise Stefanik was removed from a high-ranking board on Harvard for challenging the victory of President-elect Joe Biden. The concern for some of us is that the Capitol riot is now being used by many to accelerate the crackdown on free speech on our campuses.
As we look ahead to a second Trump Senate trial, many are referencing the impeachment of Sen. William Blount, who was already expelled when he was impeached. That case has always been anomalous as the impeachment of a former legislative figure. It was rejected by the Senate. The more relevant case to the immediate issues is that of former Secretary of State William Belknap.
With the entry of the 217th vote, the House of Representatives have impeached President Donald Trump for a second time. As I have previously stated, my primary objection to this action is the use of a snap impeachment that dispenses with the traditional hearing or inquiry of impeachment. There was no opportunity to debate the language or the implications of the language. Indeed, the House gave the President a threshold challenge based on this process. With the addition of a possible trial after Trump leaves office, the rush to judgment could become a parade of constitutional horribles. The use of impeachment to “remove” a president who has already left office is ripe for challenge on the Senate floor and even later in the federal courts.
As reported by Newsweek, Rep. Mikie Sherrill (D., N.J.) has gone public with an extraordinary allegation against some of her colleagues that they conducted secret surveillance in a conspiracy with rioters at the Capitol. If true, those members could be criminally charged and expelled from the House. Conversely, if Sherrill has no such evidence, she could (and should) face a resolution of censure or resolution.
District of Columbia Attorney General Karl Racine has declared that he is considering arresting President Donald Trump, Donald Trump Jr., Rudy Giuliani and U.S. Rep. Mo Brooks with inciting the violent invasion of the U.S. Capitol. He noted that, while the Justice Department does not believe you can charge a sitting president, he can do so in a matter of days. Ironically, I believe Trump can be indicted immediately as a constitutional matter but that his prosecution would ultimately collapse on free speech grounds.
Recently, millions of supporters of Twitter reportedly left that company due to its continued censoring of viewpoints and the permanent banning of President Donald Trump. Many went to the more open forum offered by Parler — making it the number one item on Apple’s App store. Apple, Google, and other companies then moved to cut off Parler, which has now been shutdown. In so doing, these companies eliminate any alternative to their own controlled platforms. It is a major threat to free speech. Yet, the silence of academic and many free speech advocates is striking and chilling. Continue reading “Parler Shutdown In Latest Attack on Free Speech On The Internet”
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”
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:
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”
One of the most unsettling aspects of the last four years is the intentional effort to rewrite history in the media to fit a narrative either by denying facts or echoing clearly false statements. The recent stories on the riot in Congress is a good example. Most of us denounced Trump’s speech (as it was being given) and, of course, the rioting itself. Some, however, have noted that there have been violent protests for years, including the protest in Lafayette Square. The fact that there have been violent protests by the left does not take away from the disgraceful attack on Congress. Yet, there seems a controlling narrative that must be maintained at all costs — portraying past protests by groups on the left as peaceful to magnify the criticism of the recent violence in Congress. Even a site ironically called Media Matters published a piece not only calling the Lafayette protest peaceful but repeating a long discredited claim about the controversial Trump photo op. I testified in Congress on the Lafayette Park operation and the revisionism surrounding the controversy is alarming.