Tag Archives: Impeachment

The “And” Defense Doesn’t Work

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I’m trying to say less about our former president and his minions — including the entire Republican Party — now that they have a lesser role in our lives, but a correction to the previous post is in order. Therein I considered the argument that a president cannot be impeached after leaving office because of the way the Constitution is worded. Two law professors explain why this is clearly wrong (I apologize for not noticing what they point out):

. . . Some have argued that the constitutional clause providing that “Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust, or Profit under the United States” implies that any consequence of conviction must consist of both removal and disqualification from future office — which could happen only in the case of sitting officers.

That is not what the clause says. It says the judgment may not “extend further” than these two sanctions. It does not say that both sanctions must be imposed in every case. Indeed, most convictions over the years involved only one, removal from office.

Clearly, if punishment cannot extend beyond X and Y, it means that X and Y are both allowed, but nothing else is. The Senate can’t add punishment Z to the mix, but they can apply either X or Y or the two together.

In this particular president’s case, it means that, although it’s too late to remove him from office, he can be barred from a future government position. Unfortunately, however, he can’t be forced to shave his head and wear a dunce cap.

Despite the above, Republican senators will still argue that he’s beyond punishment. They fear the former president’s radical supporters. But it’s good to understand why they’re wrong about the Constitution.

(Note: I still say we need to add “andor” to English, so we can easily say “this andor that”, while leaving “and” to mean “both” and “or” to mean “either this or that, but not both”.)

It’s Time To Fix English Again

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The House impeachment managers have submitted an 80-page “trial memorandum” explaining why the former president should be convicted in the Senate and disqualified from ever occupying a federal office again. It describes the ex-president’s lies regarding who won the election and his encouragement of the mob that attacked the Capitol. It also explains why it makes perfect sense from a legal, historical and practical perspective for the Senate to convict impeached officials even though they have left office.

In response, the creep’s lawyers have submitted a 14-page response that’s too stupid to discuss (although it will give most Republican senators an excuse to vote against conviction). 

Anyway, here’s a specific issue I want to discuss. It’s a grammatical problem with the U.S. Constitution. This is the troublesome passage:

The Senate shall have the sole Power to try all Impeachments. . . . Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States . . . 

Since you can’t remove somebody from office after they’ve left office, there seems to be a problem here. The former president’s lawyers (who are unlikely to ever receive a dime from their client) put it this way:

Since the 45th President is no longer “President,” the clause ‘shall be removed from Office on Impeachment for
’ is impossible for the Senate to accomplish, and thus the current proceeding before the Senate is void ab initio [“from the beginning”] as a legal nullity that runs patently contrary to the plain language of the Constitution.

So, although other officials have been convicted by the Senate after they’ve left office, and barring someone from holding office again used to be the main reason for impeaching somebody, as opposed to removing them from office, and almost all experts on the Constitution say it’s totally fine to convict somebody after they’ve left office, and presidents could commit all kinds of High Crimes and Misdemeanors near the end of their term if you couldn’t convict them after they left the White House, the “plain language” of the Constitution does include that three-letter word “and”.

If only James Madison, George Washington and their colleagues had used the phrase “and/or” instead of “and”! Judgment against an official would extend to removal “and/or” disqualification. There wouldn’t be any room for confusion. The Constitution’s meaning would have been perfectly clear.

Unfortunately, nobody at the Constitutional Convention was familiar with the phrase. The first known use of “and/or” occurred in 1853, sixty-four years after the Constitution was written. 

Alternatively, the framers could have used “or” instead of “and”, giving us “removal or disqualification”. But then some lawyer would have claimed that an official can’t be removed from office and disqualified at the same time. They’d argue that the Senate would have to choose between the two options, either one or the other (understanding “or” in this case as the “exclusive or”, meaning one or the other, not both). 

In the near future, we’ll learn how all this plays out in the Senate. Nobody seems to think 17 Republican senators will agree to convict the demagogue, and without 50 Democrats and 17 Republicans voting “Yes”, he will escape judgment again.

Going forward, however, I have a suggestion. We English speakers need to adopt a single term for what’s called the “inclusive or”, i.e. the meaning of “or” that implies “this or that or both this and that”. It’s rather amazing that it took hundreds of years for somebody to invent “and/or” to do the job. But since it’s not a word — unlike hyphens, a slash isn’t ordinarily used to combine other words — we need a new word to take on this function. Perhaps unsurprisingly, I suggest “andor” without a slash. “Andor” sounds the same as “and/or” and after a while it wouldn’t look weird.

This isn’t the first time I’ve argued for a change like this. Four and a half years ago, I pointed out that we should change the way we use quotation marks. I won’t go into the details again (you can review my argument at length here), but instead of writing sentences like these:

He said “Go away.”

I can spell “cat.” 

We should write them like this:

He said “Go away”.

“I can spell “cat”.

The quotation mark should go in front of the period, not after!

So far, my quotation mark suggestion hasn’t exactly taken the world by storm. Maybe I was simply ahead of my time. At any rate, please do consider adopting my suggestion from today andor my suggestion from 2016. (See how incredibly easy that is?)

We Shouldn’t Expect Much From Republican Senators

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How many Republican senators will vote to convict our former president and bar him from running for president again? Paul Waldman of The Washington Post says there won’t be enough of them:

Donald Trump’s second impeachment trial is coming soon. Senate Majority Leader Chuck Schumer announced Friday that the House will transmit the one impeachment article to the Senate on Monday, clearing the way for the trial to commence. Now begins the wrangling to determine whether 17 GOP senators might join (presumably) all 50 Democrats to convict Trump of inciting the Jan. 6 assault on the Capitol.

There’s been lots of discussion about what it would take to get to those 17 votes, in particular whether Minority Leader Mitch McConnell will vote to convict and bring others with him. There are almost certainly many more than 17 Republicans who in their hearts believe that Trump is guilty and would like their party to make a clean break with him. But whether they’ll take that position publicly is a very different matter.

Don’t bet on McConnell, or more than a couple of Republicans, coming through in the end. It’s a tricky political question for them, but the weight of their incentives will push them toward acquittal, no matter their personal feelings about Trump and what he has done to their party.

It’s true that there’s an effort to get them to convict. CNN reports that “dozens of influential Republicans around Washington — including former top Trump administration officials — have been quietly lobbying GOP members of Congress to impeach and convict Donald Trump.” One unnamed Republican member of Congress even said, “Mitch said to me he wants Trump gone.”

Which you might have gathered from the speech McConnell gave the day before Joe Biden’s inauguration. “The mob was fed lies,” he said. “They were provoked by the president and other powerful people.”

But it’s one thing to offer some harsh words about a specific misdeed and another to actually vote to convict the former president. As McConnell surely understands, while he other Republicans might want to make a clean break from Trump, the problem is that there will be no such thing. Any break from Trump will be painful and ugly.

Think of it this way: What does McConnell have to gain from voting to convict Trump, and what does he have to lose? He really has nothing at all to gain, even if he could gather 16 other Republicans to join him. That wouldn’t make his whole party turn the page and walk proudly into its post-Trump future. It would just touch off an internecine war, one that nobody would win.

Loyalty to Trump is still intense within the GOP. “If you’re wanting to erase Donald Trump from the party, you’re going to get erased,” said Trump advocate Sen. Lindsey Graham (R-S.C.), adding that trying to move forward without Trump would be “a disaster for the Republican Party.”

Graham may be wrong on the second part, but he’s right on the first. If McConnell were to vote to convict and bring others with him, he’d immediately be hit with a tsunami of rage from the right. Talk radio and Fox News would mobilize their audiences to pour down contempt upon a figure that they never much liked or trusted anyway. Enterprising Republican politicians would demand he be removed from leadership.

That’s already happening to Rep. Liz Cheney. In the days since the third-ranking member of the House Republican leadership voted to impeach Trump, she has earned a primary challenge from the right for her reelection. According to Politico, more than 100 House Republicans “have communicated to the leaders of that effort that they would support removing Cheney from leadership on a secret ballot.”

But standing up and saying it was just fine and dandy that Trump spent two months lying to his supporters, culminating with his incitement of a violent attack that could have resulted in the deaths of some of the very people who will be voting on impeachment, is not all that appealing. So Senate Republicans are coalescing around a plan: They can avoid defending what Trump did by finding safe harbor in a procedural objection.

The problem, more and more of them are saying, is that the Constitution doesn’t allow for the impeachment of a president who has left office, and therefore there shouldn’t be any trial at all.

In fact, the Constitution doesn’t say that the president can’t be impeached once he departs. While some legal scholars insist otherwise, the weight of opinion is that his impeachment would be perfectly fine.

But that doesn’t matter; for Republicans it’s an argument of convenience. And it’s one McConnell will eventually join.

When the vote comes, McConnell will deliver a dramatic speech finally revealing his position. He’ll reiterate his criticisms of Trump, for lying about the election and whipping up the crowd.

However, he’ll say, all that’s in the past now. Trump is no longer president. And Democrats are just wasting time trying to score political points when they should be addressing the country’s problems. Therefore, he’ll say with sadness, I feel I have no choice but to vote to acquit.

In so doing, he’ll save himself a lot of grief. The alternative is a gesture that won’t get him what he wants — a truly post-Trump party — but will threaten his own authority and deepen the GOP’s internal divisions. It’s not even a close call.

Unquote.

It’s not true McConnell would have nothing to gain from convicting him. McConnell could immediately insure that the creep couldn’t run for president again, even as a third party candidate. Some Republican senators would love that to happen. But these same senators would prefer that 17 other Republicans vote to convict and prohibit the malignant narcissist from running. They don’t want to be on record voting against their party’s favorite demagogue.

PS: A small group of Democrats [is] pushing the idea of passing a resolution stating that Txxxx violated the 14th Amendment — which forbids federal officials from ever holding office if they “engaged in insurrection or rebellion” against the government — and ban him from running again for president in that manner.

Yeah, the Senate Can and Should Convict Him After He’s Gone

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There’s a bit of a disagreement about whether the Senate can vote to convict our impeached president after he toddles off on January 20th. The legal experts who say the Senate can do it and should do it have by far the best argument.

Yesterday, Prof. Laurence Tribe of Harvard Law explained why the Senate can act.

Prof. Stephen Vladeck of the University of Texas law school explains it below:

Yesterday’s vote by the House of Representatives to impeach President Txxxx (again) came notwithstanding objections from Republicans that such a move is unnecessary. Because Mr. Txxxx’s term ends at noon on Jan. 20, the argument goes, there is little point in expending energy to reinforce what is already, despite Mr. Txxxx’s best efforts, a legal inevitability.

But some commentators have gone further — arguing not only that Congress should not impeach and remove Mr. Txxxx but also that come Jan. 20, it cannot do so, because the Constitution doesn’t allow for the impeachment and removal of “former” officers. This argument is wrong as a matter of text, structure, historical practice and common sense. And Mr. Txxxx is the poster child for why, even after he leaves office, such accountability is not just constitutionally permissible but necessary.

With the Senate not expected to reconvene until next Tuesday, Mr. Txxxx’s impeachment trial could not begin until Wednesday afternoon at the earliest — after the inauguration of his successor. Article II, Section 4 of the Constitution provides that the “President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” If that were all that the Constitution said about impeachment, there might be something to the argument that once the individual no longer holds the office, the impeachment power becomes defunct.

But Article I, Section 3 says more. In describing the powers of the Senate to conduct an impeachment trial, it provides that “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States” (emphasis added).

That latter clause is the key, because it drives home that the Senate has two decisions to make in impeachment cases: First, it must decide whether an officer should be removed. Then it must decide whether this person should be disqualified from holding any future federal office. Indeed, of the eight officers the Senate has ever voted to remove, it subsequently voted to disqualify only three of them — reinforcing that removal and disqualification are separate inquiries. And as this procedure and historical practice make clear, by the time the Senate votes on disqualification, the officer has already been removed. In other words, disqualification, at least, is itself necessarily a vote about a former (as opposed to current) officer.

More than that, the disqualification power is both the primary evidence of and the central reason the Constitution allows for the impeachment of former officers. Were it otherwise, an officer facing impeachment, or an officer who has already been impeached and is about to be removed, could also avoid disqualification simply by resigning. In 1876, disgraced Secretary of War William Belknap tried exactly that — resigning minutes before the House vote on his impeachment. The House impeached him anyway, concluding that his resignation did not defeat Congress’s impeachment power. And although some senators ultimately voted to acquit Belknap (who narrowly escaped a guilty verdict) because he was no longer in office, the Senate as a body first concluded that it had the power to try former officers, adopting a resolution that Belknap could be tried “for acts done as Secretary of War, notwithstanding his resignation of said office” before he was impeached.

The Belknap case cemented two precedents: Congress can impeach and remove former officers, but the fact that the defendant is no longer in office is one factor that senators may take into account in deciding whether to vote to convict. So, when President Richard Nixon resigned in August 1974 in an effort to forestall his seemingly inevitable impeachment and removal, that act did not deprive Congress of the constitutional power to still impeach, remove and disqualify him; it merely mitigated the perceived political expediency of doing so. By resigning, Mr. Nixon took at least some responsibility for his conduct. And the circumstances of his resignation left no reason to believe that he would ever again be a candidate for federal office.

But there is no indication that Mr. Txxxx plans to resign. His term ends next Wednesday only because Section 1 of the 20th Amendment says so. He is not going willingly. And he has made no secret of his interest in running for president again in 2024. What’s more, under the Former Presidents Act of 1958, he stands to receive significant financial and other tangible benefits, including a handsome annual stipend, funds for offices and a staff, and a pension. But that same statute denies such benefits to a former president who was removed “pursuant to Section 4 of Article II of the Constitution.” So whether Mr. Txxxx is impeached, convicted and disqualified determines not only whether he could ever again hold federal office but may also bear upon the extent to which federal taxpayers will be subsidizing his activities in the years to come.

The conservative argument would say that the Constitution leaves Congress powerless to deal with such a case — or with any scenario in which a president commits grossly impeachable acts in his final days in office. Not so. Whether he should be convicted and disqualified remains, under the Constitution, in the sole purview of the Senate.

And whereas the conservative argument against a post-Jan. 20 impeachment presupposes that the matter will inevitably end up in the courts (which may be sympathetic to Mr. Txxxx), that claim, too, is erroneous. In 1993, the Supreme Court held that it’s not for the courts to review the propriety of impeachments. As Chief Justice William Rehnquist wrote, neither any extrinsic evidence from the Constitutional Convention nor contemporaneous commentary suggested that the founders even contemplated “the possibility of judicial review in the context of the impeachment powers.” It’s ultimately Congress’s call — for former officers as much as current ones.

Unquote.

If the authors of the Constitution had been a bit more careful, they would have written “removal or disqualification”, not “removal and”. Damn founding fathers! That blemish seems to be the only reason to say the Senate can’t act after the 20th. As the professors explain, it’s not a good reason and not how impeachment has worked in the past.

I don’t know if there are 17 Republican senators who will agree to convict DJT (that plus the 50 Democrats will be enough). There are excellent reasons to do so. For one thing, he deserves to be convicted. Another reason is it will permit the Republicans to free themselves from the threat that he will run again in 2024 (actually, it will stop him running again and seeking campaign contributions as of January 20th, which he will no doubt do if given the chance). Any Republican senator who wants to run for president has a motive to remove competition.

A third reason is that we shouldn’t have to subsidize this guy’s gilded lifestyle after he leaves office. He’s supposed to be a billionaire. Let him uses his own resources, assuming he stays out of prison. In particular, he can afford to hire his own security detail, especially now that it’s been revealed that Ivanka and Jared wouldn’t let the Secret Service use the bathrooms in their D.C. mansion.

PS: I don’t know if it’s true, but former presidents are supposedly eligible for top secret briefings from the government. We shouldn’t trust one more secret to the Lord of the Lies and his extremely big mouth.

One Real Bad Chicken

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A personal note:

I can’t bring myself to watch the proceedings. I wanted to hear what the good guys had to say a year ago, because the issues were relatively murky. There was a timeline to understand. I wanted to see the argument laid out one step at a time. The case for impeachment this time is simple. 

On top of that, I’ve gotten the gist of the opposition’s argument. Somebody on Twitter summed up my reaction:

Just in awe of the shamelessness of GOP reps who voted to decertify the election results one week ago today standing up and kvetching that a quick impeachment is a reckless application of the House’s procedural powers.

“You’re using this as a weapon, and you’re destroying this little experiment in self-government.” –Rep. Gohmert, referring not to his own attempt to get Pence to unilaterally throw out the 2020 election but to Pelosi not routing impeachment through the proper committees. 

I wonder how many of them will actually vote for the impeachment. So far only five have said they will. More of them would except they’re afraid for their lives. They fear their own voters. They’ve said that in private (of course). They fear their own voters, the ones who could have lynched Pence and Pelosi, and blown up the Capitol if they’d been more competent. An enormous insane bloodthirsty fascist chicken has come home to roost.

Other tweets I’ve been saving. One from Prof. Timothy Snyder:

The claim that Txxxx won the election is a Big Lie. A Big Lie changes reality. To believe it, people must disbelieve their senses, distrust their fellow citizens, and live in a world of faith. 

A Big Lie demands conspiracy thinking, since all who doubt it are seen as traitors.

A Big Lie undoes a society, since it divides citizens into believers and unbelievers.

A Big Lie destroys democracy, since people who are convinced that nothing is true but the utterances of their leader ignore voting and its results.

A Big Lie must bring violence, as it has.

A Big Lie can never be told just by one person. Txxxx is the originator of this Big Lie, but it could never have flourished without his allies on Capitol Hill.

There is a cure for the Big Lie. Our elected representatives should tell the truth, without dissimulation, about the results of the 2020 election. Politicians who do not tell the simple truth perpetuate the Big Lie, further an alternative reality, support conspiracy theories, weaken democracy, and foment violence far worse than that of January 6, 2021.

One from Prof. Paul Krugman:

The basic story of the [Republican Party] is that it was taken over by plutocrats, who invited racists and conspiracy theorists into the tent because they thought it would help them cut taxes. Then they woke up one day and realized that the crazies were in charge.

And one in response to the president’s latest statement on the matter:

If the man had any interest at all in easing tensions and calming tempers, he’d hold a televised press conference conceding the election, communicating that there was no evidence of fraud, that Biden will legitimately take office on the 20th, and there’s no reason to protest it.