Saturday, February 15, 2020
Accountability at Cooper Hewitt, in contrast with the White House
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.
Thursday, February 13, 2020
The Death of the Unitary Executive
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.
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?
Tuesday, February 11, 2020
The idiocy of politics as horserace
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.
Wednesday, February 05, 2020
The Trump Impeachment as a "Precedent"
Credit Where Credit Is Due
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
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.)
Saturday, February 01, 2020
Nightmarish possibilities in the coming year (1)
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:
John Roberts on the Chief Justice's Power to Break Tie Votes in Impeachment Trials
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.
Wednesday, January 29, 2020
The problematics of impeachment (II): Constitutional interpretation v. constitutional design
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).
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.
The problematics of impeachment (I): The specific problems of Charles Black's take on the presidency
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.