Consequences for Veterans and/or retirees in the 2021 DC Riots

[wink]

He graduated top of his class from Yale Law and clerked for SCOTUS. He's a smart guy, and he has collected about every brass ring the profession has to offer. He may make some outlandish arguments, but he's a defense attorney who defends people who are guilty as all hell. He's going to have to make those arguments; it's his job. I disagree with his take on the impeachment here (as it was explained, I haven't snuck through the pay wall yet to actually read it), but I think its a fair argument to make; clearly, impeachment is tied to the federal office. Dershowitz may be a clown or political hack or what have you, and I guess the seriousness of my legal mind is debatable, but even if I think he's being a zealous advocate (or full of shit), I'm going to consider what he has to say because he has some serious credentials and some serious experience.



Wink, I'm hardly an expert, but I did OK in Con Law and like to think I can hold my own for a new lawyer. I have no doubt Dershowitz would take me out to the wood shed in a courtroom, but I think he's wrong on this one. I think the Senate can try him here without issue for a few reasons, and I'm curious to hear what others think.

1. I just don't read the Constitution to say the person still has to be in office to be impeached or tried in a case of impeachment. Obviously there is a lot of stuff the Constitution doesn't spell out that gets attributed to it, so I guess it depends how much of a textualist is doing the reading, but I try and stick to the words;

2. The President was impeached while he was still in office, so even if someone has to be in the office to be impeached, he was. I think it's fair to argue that even assuming the framers intended for only those currently in office to be subject to impeachment, there is no reason to think the trial couldn't occur later;

3. I think the limits on the judgment from a conviction the Senate in the Constitution are telling. Because "disqualification to hold and enjoy any office of honor, trust or profit under the United States" it is reasonable to conclude more than the current office is at stake and therefore the process should remain available. It also ensures, imo, that the case isn't moot just because the impeached President is no longer in office. I would argue the framers thought it was important for the Senate to be able to bench people it found worthy of conviction and the importance of that wouldn't stop just because the guilty person had already left the office;

4. Practically speaking, who is going to stop the Senate from trying it? The House is on board and enough of the Senate will be. I find it hard to believe President Biden will send in the DOJ to fight for President Trump, so you'd be left with a minority of Congress and an ex-President trying to take it to SCOTUS. SCOTUS has already invoked the political question doctrine when considering whether the Senate's impeachment procedures were proper in a case, see Nixon v. US, 506 U.S. 224 (surprisingly, not THAT Nixon - that's a different case), and I doubt they're going to get involved on this one since the Constitution still effectively says the courts have no business there (other than the Chief presiding for POTUS).

If I run across any actual experts' takes, I'll try and come back and post them.

Other stuff I saw in here I had some thoughts on that are neither here nor there:

Someone mentioned Biden pardoning Trump. He can't pardon him in a case of impeachment. U.S. Const., Art. 2, Sec. 2. Not sure if the comment was referring to impeachment or not. He could pardon him for other federal crimes.

I think Griz mentioned a bill of attainder issue. I don't think that's an issue here. A bill of attainder is when the legislature usurps the role of the judiciary by "trying" someone by passing a law saying the person is guilty and sentencing them. Impeachment is separate, and the punishment is limited to the effects on the ability to hold the office and its trappings. If they went for something beyond that, then the issue might come up. Plus the things President Trump already allegedly did were already illegal when he did them.

Thanks for the cogent reply. I did come across a good law review article from 2001, as I recall. Some the the arguements were similar to yours. If I can find it again I will link it. On balance, some of it I think is compelling, and other a bit of a reach. I am still on the fence. Hard to separate the constitutionality arguments from the political wisdom.

 

[wink]

Cool... and now he's a clown. Your appeal to authority argument is not convincing. The rest of your post is compelling, but I'm scratching my head at why you would consider Dershowitz's perspectives.

So if someone who you do not believe is a clown shared his view on the subject, you would seriously consider it? If the clown appearimg at the local hospital was a PhD physicist would you accept his opinion on time travel? ? And as you say he is "now" a clown, just when did this transformation occur?

 

[HAL Pilot]

Trump excites Schumer!

 

[Treetop Flyer]

Cool... and now he's a clown. Your appeal to authority argument is not convincing. The rest of your post is compelling, but I'm scratching my head at why you would consider Dershowitz's perspectives.

You haven’t made an argument yet to discount him. You’re a clown, and your inability to make an argument defines you

 

[Brett327]

So if someone who you do not believe is a clown shared his view on the subject, you would seriously consider it? If the clown appearimg at the local hospital was a PhD physicist would you accept his opinion on time travel? ? And as you say he is "now" a clown, just when did this transformation occur?

Ask your wife what prima facie means.

 

[Treetop Flyer]

Ask your wife what prima facie means.

Ask your wife...

Oops.

 

[llnick2001]

Cool... and now he's a clown. Your appeal to authority argument is not convincing. The rest of your post is compelling, but I'm scratching my head at why you would consider Dershowitz's perspectives.

Fair enough. His credentials certainly don't convince me he is correct on this issue either. As to whether he is a clown, I couldn't say. I do think it would be just about impossible to accomplish what he has without being highly intelligent, and I have found there is often something to learn from listening to smart people especially when they are far more experienced in the relevant field than I am, even when I disagree with them. That said, I assume clown does not necessarily mean dumb. Clown college is a thing after all.

Having now read his thoughts on the impeachment, I appreciate his arguments and don't think they are completely without merit, though I still disagree him. I think he willfully takes a narrower view of the text and is letting his politics, loyalty to his former client, and/or his prudential concerns sway the analysis in a manner the doesn't convince me he is right. I think he does a pretty good job advocating for his position; I just don't think the law is on his side.

I consider his perspectives because it would be difficult to refute his arguments effectively, or further evaluate my own, without doing so. Even a clown could be right, but I'd never know if I didn't consider his position. I also think it adds more to the discussion to try and articulate why he is wrong on the issue than merely dismissing his argument with an ad hominem attack. Neither his Yale degree nor his clown shoes determine if he is right or wrong on this. His perspectives do.

I understand if you don't care to elaborate, but if you do, what is it about him that makes him a clown in your opinion? Is it just that you find the positions he takes, generally speaking, indefensible?

 

[llnick2001]

Thanks for the cogent reply. I did come across a good law review article from 2001, as I recall. Some the the arguements were similar to yours. If I can find it again I will link it. On balance, some of it I think is compelling, and other a bit of a reach. I am still on the fence. Hard to separate the constitutionality arguments from the political wisdom.

I think his prudential concerns/politics are actually his (Dershowitz's) stronger arguments, though I think both sides have plenty of arguments to make on that point. I think one could reasonably conclude it is both constitutional and a terrible idea. If there is one thing recent history should have taught everyone though, it's that there is a big difference between government norms adopted for prudential reasons and hard and fast law.

Edited to add: I found this Op-ed by Neal Katyal (former acting Solicitor General, current king-shit appellate lawyer, so as much an expert as one who's title isn't Justice can be). It doesn't address the ability impeach after POTUS leaves office (it's about why he should be impeached in the context of the Georgia phone call), but I think his arguments about why letting it go is a bad idea are good for the other side of the prudential coin (assuming you think President Trump committed an impeachable offense). https://www.nytimes.com/2021/01/04/opinion/trump-georgia-impeach.html

 

[nittany03]

many informative words

I've heard two separate arguments on whether or not the Founders got it right with impeachment or whiffed, and I honestly am still trying to make up my mind. Obviously, there's the argument that we're down a method to check executive overreach if the country is so polarized that no one will convict a member of their own party, which says one ought to pass an amendment to make impeachment/conviction easier. Conversely, though, is that at the Constitutional Convention, the Founders explicitly rejected "maladministration" as a reason to impeach in favor of only "high crimes and misdemeanors." So you couldn't just impeach someone for sucking at their job.

I've heard it argued that if Andrew Johnson had been convicted, this would have had drastic effects on our system of government. Granted, Johnson was a uniquely shitty President, and arguably bears a lot of the blame for the current state of race relations in this country. And he only missed being convicted by one vote. But the argument is that since he was only impeached as a pretext for violating the Tenure in Office Act, if he'd have been convicted, then impeachment would have become our equivalent to a no confidence vote in a Westminster-based parlimentary system, which it was never intended to be.

 

[RobLyman]

AW Pro Tip - If you block Treetop, all of his posts are irrelevant to the discussion.

Poor advice coming from someone who cannot be ignored because they are a moderator.

 

[Hair Warrior]

US police weigh officer discipline after rally, Capitol riot

For two Virginia police officers who posed for a photo during the deadly U.S. Capitol insurrection, the reckoning has been swift and public: They were identified, charged with crimes and arrested.

apnews.com

“If they were off-duty, it’s totally free speech,” said Will Aitchison, a lawyer in Portland, Oregon, who represents law enforcement officers. “People have the right to express their political views regardless of who’s standing next to them. You just don’t get guilt by association.”

To clarify, it appears that lawyer was referring to people who attended the rally but did not break into the Capitol.

 

[taxi1]

^^ If you dig deep enough you can find something on anyone.

But I’m glad to see that you’re admitting it’s political digging.

What is it when Russia and other adversary states were doing it?

Think they weren’t?

Or aren’t still?

Ever wonder what the quid pro quo was/is for all of The Inquirer’s catch and kill work? We know he pays for silence.

 

[Hair Warrior]

What is it when Russia and other adversary states were doing it?

Think they weren’t?

Or aren’t still?

Ever wonder what the quid pro quo was/is for all of The Inquirer’s catch and kill work? We know he pays for silence.

Same could be said for the “dossier” compiled by a British ex-spy that the Democrats/Hillary requested and paid for through cut-outs. Just because that country is Anglophone doesn’t make it nonforeign.

Not enough digging has been done into Clinton Foundation quid pro quos with foreign interests. Not enough digging has been done into Hunter Biden quid pro quos with foreign interests.

And if you think this is unacceptable and was a root cause of anger by the pro-Trump rioters... well those pro-Trump protests/rallies/riots were funded by a $500k bitcoin transfer from a French national shortly before his suicide, so ya, foreigners have figured out it’s easy to fuck about with America with very little money involved. Soros has made a career out of it.

 

[taxi1]

Trump has uniquely deep exposure. We’ve never had a President who has paid so much to hide so much. He’s going to have upwards of $1B in debt come due as his properties are losing value and his lenders are running away. Imagine putting that on your SF86.

Yet he holds tremendous influence over politics right now. He is a kingmaker or breaker. He is such an obvious target.

 

[llnick2001]

I've heard two separate arguments on whether or not the Founders got it right with impeachment or whiffed, and I honestly am still trying to make up my mind. Obviously, there's the argument that we're down a method to check executive overreach if the country is so polarized that no one will convict a member of their own party, which says one ought to pass an amendment to make impeachment/conviction easier. Conversely, though, is that at the Constitutional Convention, the Founders explicitly rejected "maladministration" as a reason to impeach in favor of only "high crimes and misdemeanors." So you couldn't just impeach someone for sucking at their job.

I've heard it argued that if Andrew Johnson had been convicted, this would have had drastic effects on our system of government. Granted, Johnson was a uniquely shitty President, and arguably bears a lot of the blame for the current state of race relations in this country. And he only missed being convicted by one vote. But the argument is that since he was only impeached as a pretext for violating the Tenure in Office Act, if he'd have been convicted, then impeachment would have become our equivalent to a no confidence vote in a Westminster-based parlimentary system, which it was never intended to be.

I think it's good that impeachment and conviction following it are hard to pull off. It was meant as break glass in case of emergency kind of thing. Even in the current case with President Trump, I've read articles suggesting the threat of conviction in the Senate may have kept him from going more scorched earth (pardoning himself/family, using DOJ to try and overturn the election, ect.), so the check on him may have served some deterrent value even given the current polarization. It seems everyone recognized there was a straw out there that would break the camel's back, even if we weren't there yet.

I think the bigger problem is that the best check on the most dangerous branch (executive) was supposed to be keeping most of the power with Congress in the first place, and given the current administrative state and the desire for the federal government to "do something now" despite being intentionally designed to move slowly (and that pesky Civil War), the executive has become more powerful than intended. But I also want the federal government weak and government in general limited, so some of that may just be my libertarian showing...

Hard to say what would have happened if Johnson had broke the other way. Maybe it would have been understood that his unique brand of shitiness warranted special treatment, but it seems likely it would have had some pretty serious effects (though I'm not as much of a history buff as I should be, so I'm admittedly out of my element on this one). The problem with going to the no confidence type approach (aside from it being counter to what was intended and likely resulting in no president making it four whole years given the current way things are going) is that in the parliamentary system, the PM's power comes from the legislature, so it makes sense the same body could smack him/her upside the head for screwing the pooch (I think technically the monarch is involved in the UK, because figureheads, but the PM is the party's guy/gal). In our system the people getting impeached get the office from either the voters/electors or from their appointment by the executive, so it should really only be the extreme case that the legislature gets to do anything about them sucking beyond just being difficult to work with. Firing a PM is more like voting for a new Speaker of the House or Majority Leader than impeaching a constitutional officer in another branch, and I think that makes sense given the way the systems are set up.