Balkinization  

Saturday, February 15, 2020

Accountability at Cooper Hewitt, in contrast with the White House

Sandy Levinson

The New York Times has a fascinating story today about the insistence by the Smithsonian Institution that the director of the Cooper Hewitt Museum in New York be dismissed because of highly debatable allegations of conflicts of interest relative to the purchase of her wedding dress and then the venue of her wedding.  For obvious reasons, I'm not competent to assess the validity of the complaints other than to say that the Times article certainly provides grounds for doubt and curiosity about why the Institution is so adamant, given that the Cooper Hewitt Board is happy with the now ex-director's leadership.  But the real point of this posting is that we now seem to live in a world where it is only the President of the United States who is held unaccountable for behavior that increasingly draws scrutiny and discipline with regard to even high executives of other organizations.  The lout in the White House famously proclaimed, upon taking office, that the laws of conflict of interest don't even apply to him, so that it is irrelevant that he is clearly flouting, at the very least, the spirit of the Emoluments Clause and conflict of interest statutes.  (Of course, Josh Blackman and Seth Tillman have provided legal analyses that the Emoluments Clause simply doesn't apply to the President at all, an argument I'm certainly not persuaded by, though I don't regard it as "frivolous" in a way, say, that is true of Alan Dershowitz's argument about Trump's ability to do anything and everything he thinks benefits his election prospects.)  And, equally "of course," it would be easy to go through the Wall Street Journal and find multiple stories about business executives who have been fired or turn to the sports pages and find stories of coaches who have been suspended, with or without pay, while further investigation of allegations takes place.  There is, I continue to believe, something profoundly wrong with this picture.
The only real defense of the special treatment accorded the President appears to be an almost literally insane reliance on "the voice of the people as the voice of God," so that elections become the exclusive mechanism for holding presidents of the United States accountable.  (No one seems to suggest that Boeing should be have waited for the next shareholders meeting to fire their own chief executive.) Perhaps there should be a special dispensation during election years" that would make us especially reluctant to remove presidents in the last year of their term.  However,  I think that is ultimately indefensible if in fact one has good grounds, as we do, to fear the demented instability of an incumbent.  But I think it is truly idiotic as an argument for a president in say, the first or second year of his/her term, unless we simply want to give up, as I fear that is increasingly the case,  and accept the the notion, propagated by the DOJ, that the most important office holder in the land is unaccountable to any genuine legal or institutional constraints.

I also increasingly believe that the only real answer is to get rid of the presidential system entirely, via my constitutional convention.  It is not that parliamentary government is perfect; that, too, is an idiotic assertion.  But, all things considered, it presents fewer dangers than does presidentialism.  As Max Weber presciently suggested a century ago, Caesarism is built into the DNA of modern presidentialism. Donald Trump merely makes that clear to all but the terminally ignorant (and deplorable).  But one should acknowledge that Barack Obama's campaign in 2008, when I happily supported him over Hillary Clinton, also had a healthy supply of Caesarism, with its large Trump-like rallies and vacuous promises.  And I continue to be genuinely angry at Bernie Sanders, the ostensible "revolutionary," for his resolute (and therefore demagogic) unwillingenss to address the fact that the constitutional system itself makes his pie-in-the-sky promises almost truly irrelevant so far as their actual enactment is concerned.  Though perhaps a Sanders presidency would foment a genuine revolution when his gullible admirers come to realize that not even Bernie can turn the sow's ear that is our constitutional system into a silk purse.

Needless to say, I don't expect anything to come of such criticisms, not only because we inexplicably venerate a truly flawed Constitution, but also because Article V, coupled with our general distrust of popular democracy, makes the idea of a constitutional convention repugnant to most "thoughtful" Americans (including my wife, friends, and professional colleagues).  So, as with Corvid-19, we all have to hope for the best and ignore the fact that there may be relatively little we can do to avoid the pandemic.

ADDITION:  One new point:  We would not be having the conversations we are about the degree to which the Attorney General is merely a lackey and lickspittle of the President were we living in the system found in roughly 45 of our states, where the Attorney General is not an appointee of the governor.  (In Tennessee, the AG is appointed by the state Supreme Court.)  One doesn't have to go all the way to a parliamentary system in order to "unbundle" at least the control that presidents exercise over the Department of Justice.  As Steve Griffin suggests in his thoughtful post below, Barr's paean to DOJ "independence" puts paid to the most truly extravagant theories of the unitary executive, but I certainly don't trust the lickspittle Barr to be anything other than the faithful servant of his master, even if he would prefer fewer tweets.  90% of the American states offer a model--call it, if you wish, "a little laboratory of experimentation"--in how to achieve genuine independence.

Thursday, February 13, 2020

The Death of the Unitary Executive

Stephen Griffin

As a practical matter, the theory of the unitary executive died today and we will all be better off for it.  In this interview with ABC News, Attorney General Barr obviously sought to quiet the turmoil inside his department by staking out an area for decision making independent of the President.  The problem is as it has been elaborated by many leading scholars, the unitary executive theory does not allow for this.  It is helpful to be familiar with the evolution of the theory to grasp the full implications of Barr's statement.  In fact until now, Barr was one of its leading proponents!  It would have been interesting if the interviewer had asked Barr how his claim to independence from the White House was consistent with the theory.  That's because the unitary executive stresses the sole responsibility of the president (not the Attorney General or any other principal or inferior officer) to control the executive branch.  Indeed from this point of view, the President is the executive branch, the entire executive branch, implying no one can be independent in the way just claimed by Barr.

In truth, the proponents of this theory never had a good account of how it could be reconciled with our system of criminal investigation and prosecution.  But there's more.  With the death of the unitary executive, the theory of public meaning originalism which supported it has also taken a heavy hit.  Roughly, public meaning originalism allowed proponents of this theory to develop its account of "executive power" without worrying about the historical context in which the Constitution was adopted.  This meant they couldn't show that any single framer (yes, including Alexander Hamilton!) actually self-consciously accepted all the tenets of the theory as it has been elaborated since its advent in the Reagan administration.

For those interested, there is an excellent upcoming conference at the University of Texas where I'm sure these issues will be explored in detail.  Stay tuned.

Pardon?

Gerard N. Magliocca

One aspect of the President's running commentary on the Roger Stone trial and sentence is puzzling. If he really thinks that Stone is being treated unfairly, then he can pardon him. He does not have wait until the sentence is handed down to issue a pardon. So why isn't he pardoning him?

Consider a somewhat related hypothetical. Suppose President Ford had not pardoned Richard Nixon. Then after federal prosecutors indicted the ex-President for various felonies, Ford started saying that Nixon was being treated badly and that a trial was bad for the country. He kept up these complaints during the Nixon trial, at sentencing, and during the appeal. Setting aside the propriety of those sorts of comments, the President could do something to stop that case--he's not a helpless bystander. Ford's pardon (though controversial) avoided the sorts of entanglements with the DOJ that we see now.

I can reach only one of two conclusions about the lack of a pardon for Stone. Either the President is too scared of the political blowback to issue a pardon, or he is trying to look like he's helping Stone (to placate Stone's supporters) without actually helping him. Maybe that'll change after the election.


Tuesday, February 11, 2020

The idiocy of politics as horserace

Sandy Levinson

We are being told right now that Bernie Sanders has "won" New Hampshire with approximately 26% of the popular vote.  Yes, he is coming in first (apparently), by 2% over Pete Budtigieg.  But surely it is at least as significant that 74% of Sanders's New Hampshire neighbors voted against him.  And, I say with some regret, given my own support for Elizabeth Warren, that the total vote for Sanders and Warren, the ostensible "progressive" candidates is less than 40%.  My own view, for what it is worth, is that Amy Klobachar is the big winner of the primary inasmuch as she should clearly take over from Joe Biden as the "moderate" candidate.  But our tendency to view the primaries as horse races, where coming in first is literally the only thing that seems to count, is truly perverse.  Of course, one explanation may be that we have all become inured to the first-past-the-post system of elections that (perhaps fatally) afflicts our (and the UK's) political system.

I can't really blame our defective Constitution for this particular feature of our contemporary politics. States (or even political parties) could, for example, move to an alternative transferrable vote if they really wanted to offer a more plausible "winner" of a primary.



Wednesday, February 05, 2020

The Trump Impeachment as a "Precedent"

Stephen Griffin


I recently uploaded an article on SSRN (to be published in Constitutional Commentary) that is skeptical of the use of “historical practice” to understand constitutional changes in executive power.  This gives me something of a problem in understanding Trump’s impeachment and trial as a “precedent.”  Indeed, the Trump impeachment shows that our understanding of how precedent and practice works in the “Constitution outside the courts” is heavily dependent on the construction of historical memory.  And there’s been all sorts of misremembering going on in the Trump impeachment.

You may recall that Andrew Johnson’s acquittal led to a precedent that presidents may obstruct a congressional program enacted over his repeated vetoes.  Actually, however, Johnson sent signals during the trial that he would back off.  One historian describes Johnson as “frightened” by the impeachment and Reconstruction went forward in 1868, an election year, unimpeded by further presidential resistance.

That may sound like a reasonable enough summary, but essentially the opposite is being urged by those who think it obvious what precedent is set by the Trump impeachment.  That is, some might think it obvious that Trump is empowered by an acquittal.  But the truth is it depends on us and what we make of the impeachment in this constitutional moment.  Or perhaps more precisely, it depends on how our institutions respond.

Along this same line, you may remember Watergate as a precedent for the chastening of presidential power.  But certain influential Republicans, including Dick Cheney (then serving in the Ford White House) and current Attorney General Bill Barr regarded it as a disaster for the proper understanding of the role of the executive.  They worked for years to reverse this common understanding of the 1970s, and they had plenty of help.  If, then, Watergate counts as a “precedent,” what made it such?

As far as the Clinton impeachment, one prominent commentator still opining on impeachment today literally thought it was a precedent for a president to commit a felony in office (!) as long as it did not relate to his official duties.  But it is clear if you study the Clinton impeachment that if censure had been allowed (perhaps similar to what might have happened to Trump had censure been offered as an option), Clinton would have been rebuked on a bipartisan basis, arguably giving censure more institutional heft than the impeachment process.  In any case, I’m not aware of any presidents or their advisers since the Clinton impeachment who viewed it in that light.  They are aware that Clinton took a huge political hit which impaired his ability to accomplish the extensive policy agenda he wanted to advance after he was reelected.

In assessing the precedential meaning of the Trump impeachment, we need to get used to the idea that presidential impeachments happen so seldom that the past is not necessarily a useful guide.  Nevertheless, I do think there is a good case that some precedents were set by past impeachments.  The key is to realize that when we are talking about informal constitutional change outside the courts, historical practice or precedent is set not through mere assertion or what some think is the obvious meaning of certain events, but through a process of institutionalization or state building.  In the Johnson impeachment, for example, substantial criticism was directed at the Tenure of Office Act.  This point was taken up consistently by subsequent presidents, the Act was repealed, and then laid to rest by Chief Justice Taft in the Myers case.  This is a good example of how institutionalization works, although partly inside the courts.  Despite the views of Cheney and Barr, the same holds true for Watergate.  Congress passed laws like the War Powers Resolution, the National Emergencies Act, and the Congressional Budget and Impoundment Control Act that are still relevant today, whatever their merits (or need for reform).

Focusing on institutionalization directs us to one relatively unique aspect of the Trump impeachment – the House of Representatives was on its own.
Read more »

Credit Where Credit Is Due

John Mikhail

In his post on Sunday, Sandy attributes the January 31 scholars' letter on impeachment to me, but in fact the credit for drafting and circulating it goes to Frank Bowman and Michael Gerhardt.  Together with Sandy and several other Balkinization contributors, however, I was pleased to sign the letter and consider it to be a worthy attempt to clarify three basic points about the historical meaning of "high crimes and misdemeanors" that have been called into question in the current trial: (1) impeachable conduct need not be criminal, (2) grave abuses of power can be impeachable, and (3) a president may not abuse his powers to secure his own re-election merely because he believes it is in the public interest.  It is discouraging that such simple points need to be underscored at a time like this, but, as Charles Darwin once aptly remarked in a very different context, "Great is the power of steady misrepresentation."

Sunday, February 02, 2020

Alan Dershowitz as a messenger

Sandy Levinson

It is a cliche that it is often easier to slay messengers whose messages we find repugnant than to address who is sending the messages in the first place.  So it is, I think, in some very real way with Alan Dershowitz, who is the subject of much ridicule and opprobrium for his defense of Donald Trump. Don't get me wrong:  I have denounced Dershowitz's substantive arguments as "preposterous" and have signed a marvelous letter drafted by Georgetown Prof. John Mikhail demonstrating exactly why they fail.  But that is, in some way, beside the point with regard to understanding the critique leveled at Dershowitz and understanding the importance of his conduct.  (Full disclosure:  I have known him since 1971, and we have been sometime colleagues at the Harvard Law School.  He has always been very friendly to me.)

First, does his argument about the meaning of the Impeachment Clause violate Rule 11 of the Federal Rules of Civil Procedure:  I.e., is it "frivolous"?  The answer is not really, for a simple reason:  In terms of what Philip Bobbitt has labeled the "modalities" of constitutional argument, Dershowitz is focusing relentlessly on one of them, "textualism," which relies for its strength on a naive approach to language that can be summarized by "what meaning of 'no' do you not understand?"  Or, as with Chevron, it requires persuading the reader that language is either clear and unambiguous or open to interpretation and reinterpretation.  The argument, therefore, is that the Impeachment Clause, read by the ordinary person (including US Senators) clearly seems to suggest that a president must commit either bribery or treason or "other High Crimes and Misdemeanors" that are in some genuine way comparable to those clear crimes.  The authors of the Constitution could have substituted other words and they obviously did not do so.  Is the language self-evident in its meaning?  No, but law professors teach their impressionable students certain "canons of construction" with regard to texts that need to be "filled in" that make Dershowitz's reading non-frivolous.  To be sure, he veers away from textual interpretation to include some historical arguments as well.  It is there, I believe, that he is demonstrably and unequivocally wrong, as demonstrated by Mikhail, Laurence Tribe, Noah Feldman, Frank Bowman, and others.  But so long as one relentlessly sticks to text and makes what I have in much other work called "protestant" appeals to sola scriptura, then one cannot, alas, simply dismiss Dershowitz's argument out of hand.  What one should do, instead, is to criticize a form of "textualism" that leads one to accept even "absurd" results in order to prove one's fidelity to the text.  It is worth noting that Antonin Scalia's most enduring legacy, at this point, is his insistence on the importance of text, and it is worth noting as well that the most able defender of textualism in the legal academy is the current Dean of the Harvard Law School, John Manning.  One of his predecessors, Elena Kagan, has herself paid ample attention to texts, unlike an earlier generation (perhaps typified more by her colleague Steven Breyer, who looked at "purpose" and was therefore much less likely to feel confined by "literal" interpretation).   What Dershowitz as messenger is revealing is first that the Framers really did a remarkably bad job in drafting the Impeachment Clause.  I.e., I have no doubt at all that Baldwin et al. are completely correct in what the Framers thought they were doing (a kind of "original intent" argument), but in their zeal to get out of Philadelphia (and after their thoroughly regrettable rejection of George Mason's suggestion to make "maladministration" a ground for impeachment), they adopted language that, to be sure, might have had a "term of art" meaning to well-educated lawyers (however many there actually were at the time in America, given that many such lawyers rejected the arguments for secession and remained loyal to their Majesty King George III).  Contrary to Charles Black, the Impeachment Clause was not the product or sustained debate and thought.  And things weren't helped, of course, by the fact that any discussion was completely abstract, given that everyone knew that George Washington, with his absolutely Roman character of selflessness (save, of course, where slaves were concerned, at least during his lifetime) would not present a threat to the Republic.  And, equally "of course," they had the deluded belief that the Electoral College would serve as an effective line of defense against electing a demagogue who might make impeachment a necessity.  So instead of condemning Dershowitz for making a relentlessly textualist argument, one should instead condemn the Framers for so ineptly drafting an Impeachment Clause that turns out--this is a "lesson of experience" that they counseled us to learn from--to be a genuine danger rather than source of protection to the Republic that they hoped to create and maintain.  And, incidentally, one should certainly feel free to go on to criticize an obsession with text that does indeed justify a reckless indifference to consequences and even licenses "absurd" consequences.

Secondly, Dershowitz, from one perspective, is simply acting in the highest traditions of the "zealous" defense attorney, where, after all, he earned his justifiable fame and perhaps even fortune.  I believe his great mistake is to confuse impeachment with a criminal trial.  Were Trump charged with a criminal offense and threatened with jail, I would have no criticism of Dershowitz or any other defense attorney putting the state to its full measure of proof.  And I would have no hesitation to applaud his making a "void for vagueness" argument with regard to the almost opaque Impeachment Clause (unless one restricts it, as Dershowitz argued, to what everyone might agree would be "High Crimes and Misdemeanors" punishable as such in the statute books).  My most important teacher at Stanford was the great Anthony Amsterdam, who wrote a classic student note on the void for vagueness doctrine in the US Supreme Court and who pointed out that a fundamental norm of due process is that people actually know in advance what kind of conduct will make them liable to lose their freedom.  But, as I've argued several times before, impeachment ought not be analogized AT ALL to a criminal trial.  It is a means of disciplining an unusually important public employee whom we have reason to be suspicious of.  Just as the law in its majesty doesn't regard deportation as a punishment--you can look it up--so it should not regard loss of a job as the kind of punishment that justifies Alan Dershowitz or any other criminal defense attorney from pulling out all stops to defend a client.  Any president, like any basketball coach, should know that "abuse of power," as defined by the onlooking interpretive community, will get one fired even if, to be sure, there is no codebook that details every possible such abuse and thus frees the employee for any liability for conduct not mentioned in the code.  This, after al, is what Marshall was getting at in McCulloch when he referred to the U.S. Constitution as a "great outline."  That means we have the duty of filling it in, using our common sense and "lessons of experience" to do so.  It was there that Dershowitz's argument was so problematic.

Dershowitz comes from a tradition of criminal defense lawyers that quotes with pride Lord Brougham's statement in 1821, regarding his in effect threatening to bring down the monarchy in order to protect his client, Queen Caroline, from whom the King sought an annulment:

An advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client.  To save that client by all means and expedition, and at all hazards and costs to other persons, and, amongst them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torment, the destruction which he may bring upon others.  Separating they duty of a patriot from that of an advocate, he must go on reckless of the consequences, though it should be his unhappy fate to involve his country in confusion. 

This is Alan Dershowitz's credo, and I dare say that it has been taught by many law professors over the years, especially to students who imagine themselves defending the unpopular.  (I taught a course on professional responsibility, by choice, for about 20 years, including once at Harvard.  It is a telling criticism of law schools, students, and faculties, that it is generally not a high-status course; this is one of the reasons, ironically enough, that most law schools (though not Yale) require it, because students would rarely take it voluntarily.  My own view is that it's the single most important course in the curriculum, not least because it is also the most emotionally draining if taught with the requisite degree of seriousness and intensity.  I used to begin my course with Plato's Gorgias, about the ethics of teaching rhetoric and how to make "the lesser appear the greater."

Now it's possible that Dershowitz actually supports Trump and believes that it is good for the country that he remain president.  That is an open question; he has noted that he voted for Clinton in 2016 and has carefully refrained from offering any show of support to Trump in this year's election.  For whatever reason, he chose to represent Trump before the Senate, and he did so with the same kind of zealous vigor that he represented prior clients, some of them notorious (think only of OJ, some of them unknown figures who were in fact the victims of zealous unfair prosectors.  He has notably questioned the degree to which one should automatically trust local prosecutors, let alone police who have incentive to lie and who are often in effect excused by prosecution-friendly local judges.  I suspect that both of us believe that a serious weakness of the contemporary Supreme Court is that there is not a single member who has ever visited a client in jail, nor is that likely to change even if a Democrat wins in November.  Barack Obama did not really go outside the box in selecting judicial nominees, though one or two former public defenders managed to get on the "inferior" federal bench.  (Not the least of the paradoxes of the present time is that political liberals have fallen in love with federal prosecutors, ex-FBI and -CIA directors, while Trumpistas are denouncing them!)  So the real question is this:  Is there any reason to select out Alan Dershowitz for criticism that doesn't apply, perhaps more deeply and fundamentally, to any and all of the lawyers who appeared before the Senate to defend their master?  Dershowitz carefully sequestered himself from the discussion about witnesses, nor did he give a campaign speech for Donald Trump.  Nor, I am confident, does he share the basically fascistic views of Attorney General William Barr.

Ironically or not, perhaps one difference between Dershowitz and the Trumpista lawyers is that the latter sincerely believe they're serving the country by trying to keep the individual, Donald J. Trump, in power because he's Making America Great Again, whereas Dershowitz is "merely" behaving in the traditions of the zealous advocate and attempting, perhaps, to vindicate a notion of the Constitution that makes it especially difficult to displace a president by impeachment.  I have noted that Charles Black begins his book with excessive veneration of the Office of the President and goes on to suggest that it should indeed not be easy to fire a president.  Laurence Tribe agrees in the book that he has co-authored on impeachment.  Ditto Cass Sundstein and Michael Gerhardt.  I have become the outlier in believing that we ought to adopt a considerably more disenchanted view of all presidents and, like Ross Perot, view them merely as our employees who can be fired (or, at least, be suspended) as easily as a football coach or other high-flying executive who is usually given way too much deference.

Alan Dershowitz's performance does indeed raise a lot of questions.  And his particular statement that a sincere belief that one's re-election would serve the public interest would be enough to justify almost any corrupt behavior that was not an absolute liability crime per so is ridiculous beyond belief.  (I believe that he has tried to walk back from that assertion.)  But the main point is that his zealous advocacy in behalf of his client raises significant questions about whether we should really continue to regard the Constitution as a model of careful drafting--the answer is hell, no--or be untroubled by a seeming indifference to the social consequences of one's legal argument at least outside the very specific context of a criminal trial threatening the client's liberty.  Alan Dershowitz has performed a public service in placing both questions before us.

Saturday, February 01, 2020

Nightmarish possibilities in the coming year (1)

Sandy Levinson

Twenty years ago, Bill Eskridge and I published a co-edited book Constitutional Stupidities, Constitutional Tragedies, the first part of which asked a number of distinguished scholars to pick what they believed was the stupidest (and potentially most dangerous) feature of the Constitution.  Only Mark Tushnet at that time had the wisdom to suggest that the correct answer might be "the whole thing."  My own nomination was the eleven-week delay between election day and the inauguration of a new President, which has regularly left the US without a truly functioning government during the transition from one party to another.  (There are other problems as well, including its contribution to our de-facto elective monarchy in which we vote for candidates without having any firm ideas of whom they might even be thinking of appointing to the Cabinet.)  In any event, consider the following nightmare:

Donald Trump is, blessedly, defeated, indeed so handily that he even concedes.  (The worst nightmare, of course, is his re-election, and the second-worst is that he refuses to concede and his GOP minions, unlike the Kentucky GOP after the recent gubernatorial election, acquiesce in his refusal because of a desperate desire to hang on to power.)  But in this first nightmare scenario, Trump is in fact soundly beaten, and the icing on the cake is that the von Papen-like Mitch McConnell will no longer be majority leader in the Senate because the Democrats will pick up at least four seats in response to the degraded cravenness of the cult-like GOP.  That's the good news.  But, of course, the congenitally lying narcissistic ignoramus will continue to be President until January 20, 2021, with all of the legal powers of the presidency.  Already, many people are talking of an "unleashed" Trump who will accurately read the capitulation of the GOP as a license that he can indeed do "whatever he wants" as President.  But what will the "unleashed" (and even more unhinged "loser") Trump do following his repudiation by the electorate?  Does anyone believe he would go gently into the good night?  Won't he begin by pardoning everyone in sight, including himself, thereby rendering irrelevant whatever the Southern District of New York might conceivably be looking into.  Will he just go ahead and remove the US from NATO, which some lawyers undoubtedly would argue he has the right to do, and so on.

And imagine that Ruth Ginsburg is so elated at the Democratic victory that she suffers a fatal heart attack on November 9.  (This is obviously indelicate to write about, but the very fact that millions of people, even agnostics, are praying for her health is evidence that there is, to put it gently, some concern about her getting through another full year.)  Does anyone have any doubt that Trump would immediately nominate a successor, quite likely Amy Comey Barrett and that Mitch McConnell would do whatever he could to force the nomination through by the New Year?  Perhaps the defeated Susan Collins would suddenly demonstrate independence by voting against her, but who else, especially because the Republican Party would basically have been reduced to its most militant base that would be elated at the prospect of Barrett's replacing Ginsburg and locking in a conservative majority for the indefinite future.  (The only rational response, of course, would be the attempt by Democrats to pack the Court immediately upon taking power in January, but I assume that there would be enough Democrats from more moderate states who would accept the dubious argument that that would violate our "unwritten Constitution" as determined by the failure of FDR formally to pack the Court.)  In any event, the failure to seize the seat, if available, would certainly anger the base.

We would, of course, be far better off if we got rid of the eleven-week hiatus, but that would require also getting rid of the idiotic electoral college, which causes the delay.  I continue to believe that no sane person would design the Constitution today the way it was designed in 1787, even as modified by the 12th and 20th amendments (the latter of which at least moved up Inauguration Day to January 20), but, as Donald Rumsfeld would remind us, we live under the dreadful Constitution we have and not the one I wish we had.  

If I didn't care about the country (and the future of my grandchildren), I would, as a political scientist, relish the fact that events are generating all sorts of "natural experiments" that will test the ability of the country to endure as a decent political order (or, under truly worst-case scenarios given Trump's power over the nuclear arsenal), to endure at all.  

John Roberts on the Chief Justice's Power to Break Tie Votes in Impeachment Trials

Marty Lederman

After Lisa Murkowski announced that she'd capitulate to Mitch McConnell and vote "no" on compelling further evidence in the Senate trial, it was obvious there wouldn't be any tie votes that the Chief Justice might choose to break (or not).  (Murkowski even suggested a patently pretextual "sparing the Chief that decision" rationale for her decision:  She wrote she didn't want to allow the Democrats to purportedly "drag the Supreme Court into the fray").)

Only then did a Senator finally decide to ask Chief Justice Roberts, in effect, what he would do in the case of a tie vote.  Senator Schumer made a "parliamentary inquiry" to Roberts--namely, whether he was aware that Chief Justice Chase had broken two tie votes in the Andrew Johnson impeachment trial.  Roberts was obviously ready and willing to answer such a question and had prepared a response, apparently hand-written, which he recited:

I am [familiar with the Chase examples], Mr. Leader.  [O]ne [motion on which Chase broke a tie vote] concerned a motion to adjourn, the other concerned a motion to close deliberations.  I do not regard those isolated episodes 150 years ago as sufficient to support a general authority to break ties.  If the members of this body elected by the people and accountable to them divide equally on a motion, the normal rule is that the motion fails.  I think it would be inappropriate for me, an unelected official from a different branch of government, to assert the power to change that result so that the motion would succeed.
In other words, Roberts did not opine on whether the Chief Justice has a "general" authority to break tie votes, but did announce that in his view, contra Chase, it would be "inappropriate" for him to do so.

Even though I think the Chief Justice as "presiding officer" surely has the legal authority to break tie votes, I can't say I'm surprised that Roberts would adopt such a categorical practice of noninvolvement.  

Shortly thereafter, Senator Schumer made three motions to subpoena witnesses and testimony, and Senator McConnell moved to table each of Schumer's motions.  Those motions to table were approved on votes of 53-47 (on a broad motion to subpoena witnesses and testimony) and 51-49 (on two motions to subpoena John Bolton).  Senator Van Hollen then made a motion to require the Chief Justice himself to unilaterally (i.e., without a Senate vote) rule on motions to subpoena witnesses and documents, and thereafter to unilaterally rule on any assertions of privilege.  Again, McConnell voted to table the motion, and that tabling motion passed on a 53-47 party-line vote.

Given Roberts' decision not to vote on any ties, if the votes on McConnell's motions to table would've been 50-50, those motions would have failed, leading to debate . . . but then, after debate, if Schumer's motions to subpoena, and Van Hollen's motion to instruct the Chief Justice to decide subpoena motions, likewise would have resulted in 50-50 votes, then they, too, would have failed--in all cases without any involvement from Roberts.  

I assume the same would have happened if a witness had appeared and there were an objection to testimony on privilege grounds:  If the vote on such a motion would have been 50-50 Roberts would have deferred, the motion would thus have failed, and the witness would have been instructed to testify.  (But if for some reason there'd have been a motion to compel a reluctant witness to respond to a question on which Trump asserted privilege, Roberts's noninvolvement on a 50-50 vote would have resulted in no testimony.  The advantage, in other words, would go to whichever side was resisting the motion in question.)

The mystery is why neither party chose to ask Roberts the Chase question earlier, when the prospect of a possible tie vote on subpoena questions was very real--which, in retrospect, would have afforded both sides the knowledge of what might happen in the case of a 50-50 vote.  I imagine Lisa Murkowski, for instance, wishes that she'd have known about Roberts's posture, which would likely have given her a "green light" to join Senators Romney and Collins in announcing that they'd vote in favor of subpoenas.

Roberts's answer to Schumer's parliamentary inquiry does not, of course, resolve any question about what a Chief Justice can or should do in future trials.  It is, however, an interesting bit of historical dicta to add to the Chase precedent.

Thursday, January 30, 2020

The Chief Justice and Speaker Denison's Rule

Gerard N. Magliocca

Tomorrow the Senate may vote 50-50 to call witnesses in the impeachment trial. Can the Chief Justice vote to break this tie? I believe that he can, based on the precedent set by the Chief Justice Chase in 1868 (which was upheld by the Senate) and on a logical reading of the text, which gives the Vice-President a tie breaking vote and by extension should to any non-member of the Senate who is presiding (the only such person, of course, being the Chief Justice). But how should the Chief Justice use this tie-breaking power? Should he just do whatever he thinks best? I don't think so. That would call into question his impartiality and drag him into politics.

I suggest that the Chief Justice adopt what is known as "Speaker Denison's Rule." This is a convention of the House of Commons, followed by presiding officers in other Commonwealth countries, to ensure that the Speaker maintains his or her neutrality in a principled way.

How does Speaker Denison's Rule work? The idea is always to vote in favor of further debate but not to vote in favor of any final action. In other words, if there is a tie vote on a bill, the Speaker always votes no on the idea that he should not create a majority for legislation. But if there is a tie vote on a motion to continue debate, the Speaker always votes yes one the idea that the presumption should for more debate.

Applying Speaker Denison's Rule to a motion to call witnesses should, I think, lead to the conclusion that the Chief Justice should break a tie in favor of calling witnesses. After all, not calling witnesses is tantamount to ending debate on the fact-finding part of the trial. If the parliamentary presumption is for more discussion rather than less, then breaking a tie against witnesses would be inconsistent with that presumption.

UPDATE: In réponse to a parliamentary inquiry, the Chief Justice responded, in essence, that he thought that he lacked the power to break tie votes in an impeachment trial. (Though there was no tie vote to break.)




Wednesday, January 29, 2020

The problematics of impeachment (II): Constitutional interpretation v. constitutional design

Sandy Levinson

Because the Impeachment Clause was badly drafted and is the only mechanism, together with the useless 25th Amendment, for displacing an unfit president, it is, of course, the focus of efforts in "constitutional interpretation," a subject that lawyers profess to have some expertise in.  So we are being treated to the back-and-forth especially as to how to interpret the truly unfortunate phrase "high crimes and misdemeanor." This is a source of almost endless mischief, as seen most clearly in Alan Dershowitz's lifeline to Trumpistas.  I share the almost unanimous view that he is incorrect in his belief that impeachment requires either a crime or something close to one, as against, say, unequivocal "abuse" of presidential power.  But let's assume for the moment that Dershowitz is correct.  After al, his textual argument, drawing on the maxims ejusdem generis or noscitur a sociis, is the kind of thing we teach to impressionable first-year students as ways of making sense of not altogether precise texts. Were his analysis offered by a first-year student in a final exam, I think we'd give it a quite high grade with regard to demonstrating a mastery of a certain form of legal rhetoric and advocacy.  The problem is that it is an almost literally insane way to construe a constitution that, in Marshall's words, is "designed to endure" and/or maintain a republican form of government instead of descending into the worst form of elective monarchy.  It means that under his argument, which is now being parroted by Trumpistas, we are stuck with a patently unfit president, whose abuses may constitute clear and present dangers to our national survival even literally, let alone metaphorically, because the abuses do not meet some refined notion of criminality similar to, even if not identical with in terms of seriousness, to "bribery" or "treason."  I repeat:  No sane person would design such a Constitution if the designers were wisely following the Framers' own important instructions, i.e., learn the "lessons of experience" and thus to design a Constitution that we can quite literally live with in the 21st century.  And, by the way, no sane person would believe that the best way to honor the Framers is by endless repetition of whatever they happened to say in the waning days of the summer of 1787, when they wanted to get the hell out of Philadelphia, instead of, indeed, thinking for ourselves, as they themselves did (and which we are unwilling to do).

I have made it crystal clear that I wish we had a "vote of no confidence" provision that would serve, mercifully, to make lawyers nearly irrelevant to the discussion.  We don't.  Why that isn't viewed as a central defect of the Constitution is beyond me, save that lawyers are simply not educated to ask questions about the wisdom of our Constitution.

A second point: My Balkinization colleague Gerard joins the estimable Charles Black in believing that we ought to have a high burden of proof to surmount before firing an unfit president.  Neither adopts "beyond a reasonable doubt" (which is an insane standard for impeachment), but both seem to believe it should be higher even than "clear and convincing evidence."  Why?  Nothing is offered by way of genuine argument.  The answer would seem to require a paralyzing fear of false positives--i.e., misidentifying a worthy president as someone deserving displacement--and therefore accepting a host of false negatives--i.e., keeping in office people who, by stipulation, a majority of the House and even a majority (though not 2/3) of the Senate may agree, on the basis of preponderance or even "clear and convincing" evidence, should be bounced.  What explains such a truly questionable--I'm tempted to say irrational--devotion to presidential incumbents?  Is it the heightened belief that the "people's choice"--at least as mediated through the also idiotic electoral college system--is entitled to extreme deference, even if, by stipulation, polls plus the elected representatives of "the people" have come to agree that the president is in fact unfit (whether or not indictable as a "criminal")?  Perhaps "preponderance' is too lax, though I'm not sure why, especially in a world of political parties where we would continue to need two-thirds of the Senate to convict.

But why in the world isn't the "clear and convincing evidence" that administrative agencies use all the time sufficient?  Is the desire to be even stricter simply another sign of the pathological way we treat our presidents as father figures and our strange incorporation of Josh Chafetz's insight that since impeachment=tyrannicide, and therefore paracide, it should become almost literally unthinkable?  My colleague Jeff Tulis suggests that we'd be far better off as a political system if impeachment had become a fairly normal part of our politics, beginning, perhaps, with the impeachment, in fact proposed by some, including John Quincy Adams, of His Accidency John Tyler, the unfit part of the Tippacanoe and Tyler too Whig ticket that won the presidency in 1840.  I think Jeff is right. We would, at the least, have a more truly adult political system instead of one mired in grand mythology about the importance of presidents and preserving them in office.

 Contrary to what some of my critics have suggested, this doesn't mean moving all the way to a parliamentary system, as much as I might prefer that.  It would mean, though, that Congress could rid us of unfit chief executives who can do (and in fact do inflict) much mischief, as Tyler did, including the unconstitutional annexation of Texas by ordinary statute instead of the treaty that would never get through the  Senate.  Instead, both Cass Sunstein and Larry Tribe offer their tut-tuts at the very prospect of impeaching Tyler and generally adopt what has become the party line that impeachment is a true last resort to be used only in exceptional situations.  Given the power of the modern president--who, incidentally, is prone to declare "exceptional situations" in all sorts of circumstances in order to enhance his own power--we ought to be more willing to try to make sure that we can sleep at night with a given incumbent in office.  Perhaps a well-designed constitution, unlike our own, would spell out not only the criteria for firing a president, but also indicate the level of persuasion that a conscientious legislator--if we can imagine such a thing--would have to achieve.  Instead, we are stuck with a Clause whose practical effect, as demonstrated literally every day right now, is only to increase the justified cynicism of ordinary laypeople people and the despair among lawyers who see travesties of legal argument, at least if the arguments are assessed from anything other than the most truly academic of perspectives,  accepted as the last word by hyperpartisans looking for any port in a storm.


Parliamentary Malpractice

Gerard N. Magliocca

One surprising aspect of the trial is that no points of order are being raised. This may well be a lost art, but Senators used to be talented at using those questions to make their points or shape debate. It's especially curious to see Senators posing questions about the Chief Justice's role for the Chief Justice to read to lawyers. Why doesn't someone just pose some of those questions to him as the Presiding Officer? He may decline to answer, but who knows. My suspicion is that he is prepared with answers for some questions, but someone must ask and find out.

I would add that I'm heartened to hear (at least according to The Washington Post) that the Chief Justice is refusing to read a question that Senator Paul wants to pose naming the alleged whistleblower. This probably tips his hand on whether the whistleblower can be forced to testify publicly.

The problematics of impeachment (I): The specific problems of Charles Black's take on the presidency

Sandy Levinson

It will presumably surprise no one that one of my major responses to the present debacle going on in Washington is further distaste for what I believe, more than ever, is a deeply flawed and dysfunctional Constitutional that might quite literally contribute to destroying the country (and even the world)  as we know it.  I will undoubtedly be posting a number of entries elaborating my arguments.  But for now I want to focus on a fairly peripheral matter, which is the remarkable authority granted to Charles Black's 1974 Handbook on impeachment. Black was clearly a major presence at the Yale Law School during the 1970s (and in the legal academy for a much longer period).  People speak of him with reverence. I have no reason to challenge the veneration directed at him.  I met him once, for approximately fifteen seconds, but I of course have read some of his major work, including two unforgettable essays on Brown and on the "state action" doctrine, which he accurately described as a "conceptual disaster area."  There is also, of course, his classic book on structural constitutional interpretation.  But his principal fame now is as the author of the slender book recently republished by the Yale Press with much new material added by my friend and colleague Philip Bobbitt.  Indeed, we are co-teaching a reading course on the book this semester.  Mark Tushnet alludes to the book in his excellent comment on the role, if any, that legal academics have to play in the public debate about impeachment.

I want to focus, for now, on why I find the Handbook to be remarkably problematic and in significant ways anachronistic, coming both literally and metaphorically from another era.  It is an excellent primary source about how a gifted and important law professor, much venerated by his students, was thinking at the time of  Richard Nixon's impeachment in 1974.  But that does not speak to its genuine relevance today. I find it somewhat similar to running across a Victorian etiquette book on how to respond if the Queen invites you to tea.

Let me, for now, focus only on the four-page introduction to the book.  Paragraph two begins as follows:  "The presidency is a prime symbol of our national unity...."  Given this ostensible reality, "everyone must shrink from this most drastic of measures," i.e., impeachment.  To the extent that one agrees with Black, these are, I believe, among the true pathologies of the American constitutional order..  One of its worst features, perhaps traceable to the Constitution , is the joinder of head of state with the head of government.  The British are lucky enough to have a Queen to whom they direct their emotional attachment re the United Kingdom; otherwise, they treat their prime ministers exactly as Ross Perot correctly suggested in his own presidential campaign in 1992 should be the case:  as our chief employee. Among other things, this means we should display, as the British in fact do, an unsentimental willingness to sack presidents when they are disserving the country. 

What Black is in fact suggesting, without quite saying so, is that we have substituted the "chief executive" for the British Monarch, not only in terms of certain powers (such as pardoning) , but also, as already suggested, as the proper recipient for emotional cathexis.  Thus the playing by the Marine Band of "Hail to Chief," which suggests to most people not only the technical reality that he (or in the future she) is Commander-in-Chief of the armed forces (whatever exactly that means) and not in any sense whatsoever our Chief beyond that.  George Washington might well have been a symbol of national unity.  At least since the election of 1800 (and, as a matter of fact, in 1796, that has been an altogether dubious proposition.  Perhaps Black, who I gather was famous for his civility, believed that we ought to treat presidents as unusual individuals who united the country. but one certainly wonder why we should aspire to that in a non-fascist country. 

The most fundamental issue, of course, is what it should take to fire a terrible president. I will write later elaborating my view that the capture of the Impeachment Clause by lawyers has been an utter disaster, and, of course, Black in fact contributed to that because of his heightened belief (adopted, incidentally, by Bobbitt), that impeachment is most fundamentally a matter of law and not of politics.  But I begin with these introductory comments (by Black) because they capture so well the unfortunately heightened rhetoric we adopt with regard both to whoever occupies the Oval Office and then to the ostensible consequences of displacing that person.  Black doesn't explain why it would be so terrible to fire a president.  The implicit reason, of course, is that it would be the equivalent of parricide (and not simply, as Josh Chafetz suggested some years ago in an excellent article, a useful substitute for tyrannicide).  A more rational political system, I suggest, would not find Professor Black's language so acceptable.  Ross Perot was absolutely correct in his unsentimental description of the president.  And, as we have seen with regard, say, to the Boeing Corporation, a variety of athletic programs, movie studios, etc., the boards of directors re notably willing to sack ostensible leaders when they are thought to have behaved in one or another dicey way.  Even if one believes that immediate firing may be too drastic, very few object to the suspension (perhaps with pay) of the alleged miscreant.  Only at the highest level, with regard to the individual who has power over nuclear weapons, do we believe that demonstrably unfit persons must be left in office unless they can be shown, satisfactory to their literally thoughtless partisan supporters, to have committed criminal acts. 

Black, to his great credit, rejected the nonsense being purveyed by Alan Dershowitz, who believes that we're talking not about firing an unfit employee, but instead jailing him (or perhaps even committing the equivalent of regiicide, as in 1649).  One does not have to demonstrate that a president committed a "criminal" offense, whatever the language of the text.  The fact is that the Impeachment Clause, like several other parts of the Constitution, was dreadfully drafted, in part because, contrary to Black's assurance in the introduction, it was not "very carefully considered." The convention was flailing around at that point trying to figure out for once and for all first how to elect a president--and we got the truly terrible electoral college--and then how to displace one.  (They were not offended by the possibility that an elected president would be displaced; the only question was what it should take.)     But Black still believed, as does Bobbitt, that lawyers have some special insight into what it should take to displace a president.  Like Mark Tushnet (I think), I'm really skeptical. My own concerns are those of a concerned a frightened citizen.  I genuinely don't know what the various testimony including that by good friends whom I truly like and admire, has added to our common life as citizens.

A final comment for now about Black (and his anachoronism).  He emphasizes that theHouse and the Senate, as "responsible tribunals," are "duty bound to act as their own views of the law and the facts, as free as may be of partisan political motives and pressure...."  We ought to expect "principled political neutrality." This may be a noble hope, but it is almost literally a fantasy with regard to the world we live in today.   Our task is not to utter anachronistic and pious hopes, but to address the awful world we live in (including the very epitome of what Jack accurately calls "constitutional rot," Mitch McConnell, who in a proper system would never have been allowed to perjure himself by taking his oath to be "impartial" in presenting and listening to the evidence).  A modern handbook should listen to Donald Rumsfeld:  We conduct politics with the political culture (and  Constitution) we have, not the one we wish we had.  To pretend that Donald Trump is Washington or that Mitch McConnell is entitled to even an iota of respect as a Publian legislator is the equivalent of accepting as true the ravings of huckster. 

How can anyone who teaches constitutional law, especially to younger students, possibly pretend that this is really a republic that they should mindlessly pledge allegiance to?

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