Balkinization  

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.

Comments:

Dershowitz's position is ridiculous in about 50 different ways.

But I will say 2 things:

1. It's worth remembering that though other impeachment "scholars" are less ridiculous than Dershowitz, ALL of them are arrogant people who need to stay in their lane.

The SENATE gets to decide what is removable. In every impeachment, the Senate has ignored scholars and has voted politically. As it should.

The "sole power" to try impeachments mean scholars get no say, and they should just shut up about what Hamilton said. No Senator owes any obligation to Alexander Hamilton- they owe an obligation to their constituents.

2. As for this:

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.

Dershowitz IS acting as a legitimate defense attorney. Defense attorneys are not legal scholars. They aren't required to tell the truth or to avoid spinning. Their job is to give the trier of fact something to latch onto to free an often guilty client.

That is literally Dershowitz's job, and if what he says persuades some Senators or gives them a talking point, that's the only measure of whether he is doing it well.
 

I think your concept of constitutional "absurdity" needs some explication. Facially, I'm having a difficult time distinguishing your, "This proposed meaning is absurd!" from "This proposed meaning offends my policy preferences!"

I really don't see how Dershowitz's position, that impeachment must be over some crime or substantially crime-like behavior. is in any meaningful sense "absurd". As applied to the present circumstances, it doesn't produce an outcome you like, but that's not what "absurd" means, after all.

Did you really mean, "absurd", or was the offense against your personal preferences really what you were getting at? I have to think the former, because there's no obvious reason anyone but yourself would attribute any particular weight to such offense.

What is the nature of the absurdity you see here?
 

Sandy:

The Constitutional Convention did not do a poor job drafting the Impeachment Clauses. The words the drafters chose and rejected make the meaning clear - Congress may impeach and remove the POTUS for violating the law.

You just disagree with the standard in this case because Congress cannot employ it to depose the object of your fear and loathing - Donald Trump.

I’m curious. What standard did you advocate for removal when a GOP House impeached Democrat Bill Cinton for committing four felony crimes for which less privileged people serve prison time?

Dershowitz is indeed a classic criminal defense attorney, forcing the state to prove its case according to the law beyond any reasonable doubt, even if he personally dislikes the client. He was, without a doubt, the MVP of the POTUS defense team. The bipartisan Senate majority which will acquit Trump will quote him, as will his hypocritical partisan peers if a future GOP House retaliates in kind against a Democrat POTUS.
 

Dilan,

My wife and I,and all other parents, may have the sole power to make decisions about our kids education but that doesn't mean that education professors shouldn't stop thinking, researching and pontificating on how best to do that.
 

Absurd would mean something like saying that behavior that subverts elections is unimpeachable just because it doesn't fall into part of the specified criminal code (abuse of a president's lawful powers really can't fall into the criminal code since they aren't indictable while in office). If impeachment is for anything it's for getting rid of a President who mis-uses their power to make sure elections can't, and impeachment clause which doesn't do that is absurd.

But other meanings of absurd abound in the law and a common one is 'unthinkable to a rational, moral, semi-objective person.' For example, at one time when there was no statute on point common law courts had no problem ruling that it would be absurd to enforce a will in favor of someone who was named in the will but who murdered the writer of the will. I'd also argue that allowing what Dershowitz would is absurd in that sense. In that vein, even our Birchers know it's egregious to allow political officials to use their power to target for investigation and prosecution their political enemies, they've decried it many times when the shoe is on the other foot (the phony 'spy and dirty tricks' campaign of Obama on Trump, the prosecutions of Trump associates, etc). Their partisanship has just warped their rational and moral compass.
 

" What standard did you advocate for removal when a GOP House impeached Democrat Bill Cinton for committing four felony crimes for which less privileged people serve prison time?"

He likely just agrees with the originally understood standard:

"Not but that crimes of a strictly legal character fall within the scope of the power; but that it has a more enlarged operation, and reaches, what are aptly termed political offenses, growing out of personal misconduct or gross neglect, or usurpation, or habitual disregard of the public interests, various in their character, and so indefinable in their actual involutions, that it is almost impossible to provide systematically for them by positive law They must be examined upon very broad and comprehensive principles of public policy and duty. They must be judged of by the habits and rules and principles of diplomacy, or departmental operations and arrangements, of parliamentary practice, of executive customs and negotiations of foreign as well as domestic political movements" Joseph Story

There have been many impeachments (of judges and such) throughout history that recognized as grounds actions not specified in the extant criminal code.
 

"his hypocritical partisan peers"

Lol, every accusation is indeed a confession.

https://www.cnn.com/videos/politics/2020/01/20/alan-dershowitz-1998-doesnt-have-to-be-crime-to-impeach.cnn
 

I really don't see how Dershowitz's position, that impeachment must be over some crime or substantially crime-like behavior. is in any meaningful sense "absurd".

It's absurd because the deeper purpose behind impeachment-and-removal is to remove someone who is too dangerous to leave in until the next election. And non-criminal abuse of power can rise to that.
 

"behavior that subverts elections"

What, you mean working with foreigners to introduce false information into our campaigns, to sway the public by creating an illusion of corruption or perversion, would justify impeachment?

So, in some alternate universe, you'd have supported impeaching newly elected President H. Clinton for subverting the election with the Steele dossier?

I would reserve the term "subverting an election" for actions which somehow results in somebody than the actual winner of cast votes from taking office. Rigging vote counts, perhaps. Not merely actions which change peoples' opinions, resulting in their voting differently.
 

My wife and I,and all other parents, may have the sole power to make decisions about our kids education but that doesn't mean that education professors shouldn't stop thinking, researching and pontificating on how best to do that.

It is certainly a reasonable thing to study in universities, but if they knock on your door and insist on coming into your home and lecturing you on what your education decisions should be, you would, and should, call the police and get them thrown out.

I have no objection to the study of (1) what criteria Senates applied in impeachment proceedings and (2) what the lying framers SAID (and bear in mind, these were propagandists who were just trying to get the Constitution enacted to lock in their legal right to rape their slaves) impeachment was about. But no Senator should listen to any of that and those people should shut up during actual impeachments instead of arrogantly proclaiming themselves "experts" in something they have no say over.
 

Put another way, because what Hamilton said is completely irrelevant to how a modern Senator should approach impeachment, and is also completely irrelevant to how any Senator DOES approach impeachment, going on media outlets and proclaiming some special "expertise" about the "standard" for impeachment is both a lie and incredibly arrogant. Because the actual standard applied in impeachment proceedings is a political one, and thus Senators, not scholars, are the experts here.

And honestly, I think the scholars are just trying to attain an influence they don't deserve here.
 

Very interesting post. Hell of complications, just worth to note , concerning the "zealous advocacy " notion:

It bears some significant moral basis. Just one:

In the US, as in other common law states worldwide, the system or judiciary, is based on " adversarial method " or system. What does it mean it practice:

That, the judge, is fed by strategy, and evidences, made by both sides: defense v. prosecution. He doesn't dig or search or investigate the case, but, prevails in light of the given material, presented by both sides.His role as a judge then, is to asses both sides strategy and arguments, and balance them both, and prevail finally. That means:

That when both sides are committed, to do their best, for their clients ( state v. defendant for example, in criminal proceedings) he can better weight and asses , who is right, who is wrong and why ? Of course, the central purpose, is , to seek the truth, always by nature, typically controversial. That is to say:

That when one lawyer, is doing his best, and zealously so for his client, he is then, serving also justice. Helping court seeking the truth, is to serve justice. So:

It bears moral advantage, beyond the narrow interest of the client.

Thanks
 

"It's absurd because the deeper purpose behind impeachment-and-removal is to remove someone who is too dangerous to leave in until the next election. And non-criminal abuse of power can rise to that."

Well, yes, I could see impeaching over something like ordering our B-52 fleet to fly in circles over the ocean until they run out of fuel and crash, even if there weren't a law against it. *Might* be a stretch to call that criminal, or of the same nature of criminality. Then again, it might not. Of course, at that point invoking the 25th amendment wouldn't be so laughable.

You could throw into the same category shipping a state sponsor multiple billions in unmarked small bills, I suppose. The sort of thing that it's just inconceivable you'd do for any reason save to irreversibly damage your own country.

But then you'd have to establish the whole "too dangerous to leave in office" thing, which some might think incomparable with sitting on the impeachment for a few weeks, and the danger being clear and present when you could persuade not one member of the opposing party, and not every member of your own.

Which is to say, you might imagine some scenario which is a poor fit for Dersh's conception of the reach of impeachment, at this point you're just imagining it, because the truth is you just really, really dislike this President, and "He might be relected!" is NOT an impeachable offense.
 

Brett:

I think of Dershowitz's arguments, "President Trump's actions don't meet any plausible standard for impeachment" is a better argument by orders of magnitudes than "no non-criminal act is impeachable".

But bear in mind Dershowitz's real job here. His job is like Johnnie Cochran's in the OJ trial- to give an already sympathetic set of triers of fact some talking points to justify what they plan to do anyway. And Dershowitz did that just fine, even if what he said really isn't a workable standard of impeachment.
 

"at this point you're just imagining it, because the truth is you just really, really dislike this President"

Bircher Brett forgets who he's talking to here, Dilan consistently defended not impeaching the President here.
 

Dilan, that's silly anti-elitism. Surely education professors have not only the right to study how to best educate a child but also to speak about their results to the general public. The fact that I have the sole power to direct my kids education doesn't mean any decision I make cant be called wrong on a host of criteria and evidence.
 

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Wow, Bircher Brett really can't (won't?) fathom what abuse of power warranting impeachment is all about. For starters he doesn't get the foundation that, well, you have to be in power to abuse it.

An ostensible libertarian, folks!
 

Dilan, that's silly anti-elitism. Surely education professors have not only the right to study how to best educate a child but also to speak about their results to the general public.

The problem with that argument is that there is actually some objective truth, supported by data, of how childrearing works. They should still stay out of your house, but if they want to study it, that's fine.

But there's no objective truth whatsoever as to what a removable offense is. It's literally whatever 2/3rds of the Senate says it is, and that was actually the constitutional design.

I don't love jury analogies, but it's worth noting that it's actually reversible error for an expert to EVER tell a jury how they are supposed to decide a case. Literally hundreds of cases over the years have been reversed on this very ground. Jurors are expected to have a common understanding to decide cases based on community norms, and the views of experts are completely irrelevant. As I said, you aren't even allowed to mention their opinions at the trial.

That doesn't mean scholars can't study juries. They can. But there's no market for scholarship or expertise on what juries "are supposed" to do, because jurors have that call and scholars' views are irrelevant.
 

Here's an example of my previous point.

Let's say you sue someone for negligence. The jury will get an instruction that they must decide whether the defendant used reasonable care. That's the negligence instruction.

Now, famously, there's a whole bunch of scholarship about what constitutes reasonable care. There are economic approaches, such as Posner's, that turn on the trade-off of costs and benefits, and corrective justice approaches, and Kantian approaches, and all sorts of other approaches. You can find those arguments in the scholarship.

But none of that goes to the jury. Indeed, if you try to have a scholar testify to the jury about the meaning of negligence law or whether the defendant's conduct fits the definition, it will be excluded, and if the trial court allows it, it is reversible error. The jury decides it, the jury decides it based on their own understanding of the norms of the community and reasonable care, and the views of scholars about what juries SHOULD do is irrelevant and prejudicial.

That's exactly what impeachment scholars are trying to do here- not simply to put forth arguments in law reviews about what the standard should be, but to lecture the trier of fact as to what the standard they are going to apply actually means. And that's a complete no-no.
 

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"But there's no market for scholarship or expertise on what juries "are supposed" to do"

If that were so jury instructions are meaningless no? And aren't jury decisions at times set aside? Also, what each side can even tell a jury is restricted.


 

Dilan,

I'm off to the Super Bowl party, but here is my main point:

If they wanted to, the House could impeach and the Senate could convict and remove a President for being black. If they did so I'd say they had the power to do so but were at the same time *wrong* to do so.
 


If they wanted to, the House could impeach and the Senate could convict and remove a President for being black. If they did so I'd say they had the power to do so but were at the same time *wrong* to do so.


Sure, but you also wouldn't need a scholar to tell you that.

I am not saying nobody can criticize the Senate. I am saying people who couch their personal opinions in the language of Hamilton have no special authority here.

If that were so jury instructions are meaningless no? And aren't jury decisions at times set aside? Also, what each side can even tell a jury is restricted.

The Senate can, as part of its sole power to try impeachments, devise jury instructions for impeachment trials. (As of now, the only prescribed instruction is the "Senators, how say you" instruction.) In devising those instructions, they have no obligation to heed the views of scholars, though they of course may if they wish to.

But that's not my claim. Judges ARE allowed to consult scholars in drafting form jury instructions. But the jury itself does not hear the view of those scholars. The jury only hears the form instruction, and how they apply that instruction is totally up to the jury.
 

I should add a further point about your "impeach and remove a President for being black".

The framers of the Constitution would unanimously approve of such an impeachment.

I mean, it's a cheap shot, but it is true. Every one of this country's framers was a genocidal racist who felt that black people had no place in government and was at all times to be the subservient race.

So in actuality, a "scholar" who told you that the framers would not support impeachment in such a situation would not only not be assisting you in making any conclusion you could not yourself make, but he would be lying about the intentions and understandings of the framers.
 

Dilan, his actual standard was criminal, or of a nature similar to criminality.

I agree that we can envision hypothetical abuses of power that might not fit the predicates of any specific criminal law. Like my example of deliberately destroying a large component of our military for no other purpose than to reduce our military strength, or channeling a huge sum to a state sponsor of terrorism which is still, by its own domestic statements, in a state of war with the US.

I suppose Dersh would argue that they meet the "or crime-like" aspect of his standard. In which case his standard becomes just another "or really bad policy" standard.

It's possible to exercise nominally legal exercises of power which manifestly could have no objective but to harm the country, and this seems to me a fit cause for impeachment.

But, in the present instance, these discussions are kind of irrelevant, since the actual cause for impeachment was something not even all the Democrats in the House found persuasive.

We're not in existential threat territory, we're in "People who don't like the President are afraid the voters might not agree with them" territory.
 

"The framers of the Constitution would unanimously approve of such an impeachment."

Oh, come on. You have to imagine, first, a context in which a black does become President.

The very first thing Jefferson, say, would ask, if confronted with such a hypothetical, would be, "How did a black happen to become President?" Because it's not like you can trip on a stone in the street and fall into being President.

And if you told him, "Well, that back went to college, graduated, was elected state rep, then elected to the Senate, and then ran for President and was duly elected."?

Well, that would be so alien from his experience, that he might have to re-evaluate his opinion about blacks.

Or maybe not, because it's not like Jefferson was utterly unacquainted with the concept of free blacks. Not all blacks in his time were slaves, after all.
 

The very first thing Jefferson, say, would ask, if confronted with such a hypothetical, would be, "How did a black happen to become President?"

The very first thing Jefferson would say, if confronted with such a hypothetical, is that the fugitive slave laws require the President to be removed from power and returned to his or her master.

I mean, obviously, it's a ridiculous hypothetical. But the point I am making is a scholar who actually said "well, the framers would say such a person could not be removed on that ground" requires one to hypothesize nonexistent framers who weren't virulent racists who thought that black people should be enslaved.

And once you are hypothesizing non-racist framers, what's the point of scholarship about the framers' views of impeachment?
 

I think I have a better hypothetical for Dershowitz, Brett.

Let's say the President issues a threat that if China does not capitulate with us on a new trade agreement within 3 weeks, he will launch a nuclear attack.

That's all the President does. No crime at all, right? The House and the Senate, in an attempt to prevent the President from carrying out the threat, impeach and remove him. Any constitutional problem there?
 

The SENATE gets to decide what is removable. In every impeachment, the Senate has ignored scholars and has voted politically. As it should.

......
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.

Dershowitz IS acting as a legitimate defense attorney. Defense attorneys are not legal scholars. They aren't required to tell the truth or to avoid spinning. Their job is to give the trier of fact something to latch onto to free an often guilty client.

That is literally Dershowitz's job, and if what he says persuades some Senators or gives them a talking point, that's the only measure of whether he is doing it well.


Would you equally praise a legislator who made vigorous but specious, or preposterous, to use Sandy's term, arguments in support of some proposed bill? Since impeachment is a political and not a criminal process it seems to me that we should evaluate the advocates not just on vigor, or success, but on the abstract quality of their arguments as well.
 

"The very first thing Jefferson would say, if confronted with such a hypothetical, is that the fugitive slave laws require the President to be removed from power and returned to his or her master."

Give me a break. You know quite well that not remotely all blacks in Jefferson's time were slaves.
 

Jefferson is quite infamous for his derogatory comments about the mental capacity of free blacks. You really should have picked a better example.
 

No Byomtov. Politicians have a responsibility not to lie to constituents. Defense lawyers do not.
 

So people should feel free to criticize the Senate in this political and legal (they are, after all, carrying out a provision of the Constitution) but not people with extensive training in political science, law, etc.

Sure, that holds up as well as the 49ers defense did in the 4th quarter.

I mean, when you (correctly imo) argue to Bircher Brett the logic of impeachments 'purpose' means certain things must be subject to impeachment you're doing what many legal scholars opining on impeachment are doing, can you not see that?
 

we're in "People who don't like the President are afraid he's using his powers to put out a selective political hit on his chief domestic rival" territory.

Fixed that for Brett. And he would recognize the danger full well if he thought his side were the victim of such abuse of power. He's inducted that several times recently. He's just being partisan incoherent.
 

Mista:

If some professor wants to speak as an ordinary citizen, I have no objection.

But that's NOT what these arrogant professors want. They want us to DEFER to them, as if their claims about what the genocidal racists who wrote the impeachment clause allegedly thought should have some special purchase and BIND modern Senators. And that's wrong.
 

When you try to argue with Bircher Brett that impeachment must or likely includes non-criminal acts are you arrogantly wanting him to DEFER to you or are you trying to persuade him? There may be some professors doing that but at least a lot of them are just trying to argue that the logical function of impeachment suggests that or that the understanding of the term 'high crimes and misdemeanors' suggests that, etc. There's nothing to get so upset about there, unless you think that you're right and they're wrong about what the term means, what the Senates duty is, etc., in which case you're hoisted on your own petard.
 

When you try to argue with Bircher Brett that impeachment must or likely includes non-criminal acts are you arrogantly wanting him to DEFER to you or are you trying to persuade him? There may be some professors doing the former but at least a lot of them are just trying to argue that the logical function of impeachment suggests that or that the understanding of the term 'high crimes and misdemeanors' suggests that, etc. There's nothing to get so upset about there, unless you think that you're right and they're wrong about what the term means, what the Senates duty is, etc., in which case you're hoisted on your own petard.
 

The House and Senate have a range of political decisions to make and they have since the very beginning in part was assisted by others. They still make the final call. But, they still are assisted in making it from others. Alan D. was "in his lane." He is or was on the Trump legal team. He made an argument for them. That's all. The argument is shoddy.

He's a risible character but not really my prime concern. The White House Counsel, Pat Cippolone, was warned back on January 21 that he could be a material witness, which makes his role on the Trump legal team questionable. More than one legal mind also questioned a WH Counsel being on the legal team here since they represent the office, not the person. There also has been some evidence offered he has broken legal ethics or worse to the extent he should be reported to the bar. Being a federal official, he technically even can be impeached. Such issues concern me more than Alan D., who even the Trump legal team as a whole might have eventually wanted to distance themselves from somewhat.

https://www.justsecurity.org/wp-content/uploads/2020/01/ukraine-clearinghouse-2020-01-21_house_managers_ltr_to_cipollone.pdf

I don't want to discuss those things any more -- I will leave the nuances to others (even if the Senate totally controls the trial, he could have committed a breach warranting sanction or at least a concern ... also, people can debate on good policy for those with discretion to do any number of things, both in government & out of government & such things can affect who we elect or donate to or whatever) -- but it seems more worth our concern at this point.
 

Mista:

I claim no special authority to interpret the impeachment clause. Whatever the Senate says, goes.
 

Joe:

I agree Cippollone had a potential conflict, and the Senate could have DQ'd him. But impeachment, being political, is different than judicial proceedings, so perhaps there is no reason to do so, especially since his client presumably understands the potential conflict and wants him up there.

There's definitely no prejudice to the House managers, who were going to lose badly no matter what.
 

We're back full circle. I may have the right to direct my child's education by having him homeschooled and that entailing watching Dr Phil episodes eight hours a day. But other people would have the right to question the logic, morality, etc of that. And experts would have the same right to bring their expertise to bear in doing the same. Ethicists could argue the reasons I give are based on fallacies, education professors could argue the method produces undesired results.

Likewise Senators have the right to vote how they want, and people can question the sense or morality of that vote, and experts can question the logic of the rationales, the comportment with precedent/historical understandings of the criteria (especially given those are cited as valuable by both sides), the evidence of undesired results that may arise, etc.

Cochrane is a good example. Of course in a sense of he gave jurors who wanted to acquit based on race a comfortable pretext to acquit OJ then as a defense attorney defending his client he did good. But that doesn't mean people and legal experts shouldn't criticize the fallacies he peddled, the desirability of the result (especially long term,) the comportment with the stated legal objectives and, yes, even the morality of it all (courts gain their ultimate legitimacy as arbiters seeking justice).
 

Politicians have a responsibility not to lie to constituents. Defense lawyers do not.

First, we are not talking about outright lying, but rather of making foolish arguments, like "These tax cuts will pay for themselves," to take a popular example.

Second, I thought defense lawyers, however enthusiastic, were not allowed to actually lie to the court.

Third, the analogy to a defense lawyer doesn't quite hold since the impeachment proceeding is a political process, more akin to legislation, or maybe confirming a nominee to some office, than to a criminal trial.

One aspect of this difference is that the outcome of the impeachment has an impact vastly broader than the outcome of a criminal trial. Hence the participants have a broader obligation.

 

Dilan,

Just to quote a comment of yours I missed:

impeachment, being political, is different than judicial proceedings, so perhaps there is no reason to do so, especially since his client presumably understands the potential conflict and wants him up there.

So perhaps the duty of the advocates on either side are different in the two cases as well.
 

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Dilan said...I think I have a better hypothetical for Dershowitz, Brett. Let's say the President issues a threat that if China does not capitulate with us on a new trade agreement within 3 weeks, he will launch a nuclear attack. That's all the President does. No crime at all, right? The House and the Senate, in an attempt to prevent the President from carrying out the threat, impeach and remove him. Any constitutional problem there?

No high crime and misdemeanor.

In fact, Nixon did something very similar by placing the US nuclear forces on Defcon 3 and warning the USSR not to intervene on behalf of the Arabs during the Yom Kippur War.

Now, if a POTUS violated the Constitution by beginning a war without a congressional declaration, that would be a high crime and misdemeanor.

In sum, threat, no; act violating the law, yes.
 

Mista:

There is an actual objective truth with respect to education, and scientific research that leads you to it.

But with juries, no expert has any special knowledge on the "right" way to decide a case. We exclude them completely.

Why? Because we literally don't want juries influenced by dishonest academics who attach a hackish opinion to the mantle of their scholarship. The jury is supposed to use the tools of common sense, not alleged "expertise".

The Senate is the same way.
 

Byomtov:

The Senate can impose restrictions on both House managers and defense lawyers. They can impose conflicts rules if they wish.
 

Bart:

Your position is absurd.
 

Mista:

Now you may reply "we allow expert witnesses all the time". But we never allow an expert on what the jury is supposed to do, only on things outside of common knowledge like customs in an industry.

But on the actual job of the jury, we give jury vague instructions and that's it. The law takes the exact position that you consider to be anti-intellectual- "experts" on what juries should do never get to go anywhere near the jury. It violates a defendant's constiutional rights to do so.
 

Dilan:

Absurd scenarios inevitably lead to absurd applications of the law.

However, the law is the law.
 

1 other thing Mista. I hope you don't take parenting advice from racist racial serial rapist genocidaires who think it's OK to own people. Nor from people whose "expertise" comes from supposedly interpreting what such people wrote.

Indeed, I really hope these scholars are the hacks I think they are. Because anyone who thinks we should actually bind ourselves to the views of the awful people who founded this country has any number of moral screws loose.
 

Bart:

The law, including rules of statutory interpretation, includes the canon of avoiding absurdity.
 

Dilan: The law, including rules of statutory interpretation, includes the canon of avoiding absurdity.

Avoidance of absurd results is a cannon used to resolve textual ambiguity, not absurd scenarios.


 

I think that by Frank Baldwin you mean Frank Bowman.
 

The first part of Mr. W.'s 7:03 AM comment is generally on point.

(I make it a general rule not to say "what they said" since I might disagree with some little portion or some portion might not matter. This is a good general rule -- people can in general be correct about something and that can save time.)

The general response has been put out there since the beginning as a way for the public and others to provide a check on their representatives and others. A basic concept understood by those who framed the Constitution, e.g., was honor. This is a limited check, but "I have the raw power, I can do it" was not understood to be all there is. There was some general understanding that various pressures would be in place.

This is so even for Republicans now. A basic option now is "Trump did something wrong and appropriate but ..." This is notable since Republicans rarely actually say this, at least so firmly. They did this because of political pressure on them, something that is part of the overall process in place here. "Political" is a complicated process as various things tend to be. It's hard to quantify but simplistic analysis is not an accurate accounting. The same goes to explaining how a judge decides or any number of other actors with wide discretion.
 

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Plus, besides that, the people generally have a right and in my view responsibility to think things through and express their opinions, expert or otherwise. So, we have various legal blogs that express opinions like this one. It is part of united whole that in some fashion continues the ball rolling including guiding various members of government who actually help to make policy (Marty Lederman, e.g.).

[The effects of blogs as compared to others might be small. The people do read such things. In a recent talk, e.g., it came out that Justice Kagan read Twitter and state judges in fact openly tweet.]
 

"Second, I thought defense lawyers, however enthusiastic, were not allowed to actually lie to the court."

They aren't, and Trump's lawyers did (or, to be charitable, mis-stated a well known and easily verifiable fact, which they failed to correct). But defense lawyers in court also don't get to tell the jury to apply a different legal standard than the one which in fact applies.

The obvious solution here, other than eliminating impeachment entirely, is to write the standard into the Constitution, which gets us back to the OP and how badly drafted the Constitution is for purposes of application. Because it's more of an outline than a code, it depends on fair-minded, honorable people applying it according to a reasonable understanding of the text as developed through precedent. By that standard, Dershowitz's argument was meritless.

Making it worse is that Dershowitz advertises himself as a professor of Con Law, not as a defense attorney. In fact he denied that he was acting as Trump's lawyer, a point noted by Orin Kerr.
 

"he denied that he was acting as Trump's lawyer"

When he was talking, the caption on screen tended to list him as being on Trump's legal team or something, whatever parsing he was going for here.

Marks "depends on" rule is important and when things get to a certain point, it is just out of whack. I don't know how useful an amendment is [anything likely to pass and fitting in the general need for some play in the joints will have an opening for abuse if the people in charge are game enough]but to flag it again Prof. Eric Segall over at Dorf on Law suggested an amendment that not only replaced the presiding officer for presidential impeachments but clarifying other details too.
 

Avoidance of absurd results is a cannon used to resolve textual ambiguity, not absurd scenarios.

"High crimes and misdemeanors" is ambiguous, Bart.
 

A basic concept understood by those who framed the Constitution, e.g., was honor.

Did Thomas Jefferson beleive in "honor" while he was orgasming on top of his victim, Sally Hemings?
 

They aren't, and Trump's lawyers did (or, to be charitable, mis-stated a well known and easily verifiable fact, which they failed to correct)

Mark, you are literally talking out of your ass here. You know nothing about what defense lawyers do.

No, in the narrow sense of "they aren't allowed to say something is true that they personally know to a certainty to be false", that is correct. If your client literally admits to you that he is guilty, and you believe him, you can't tell the jury he is innocent.

But that is an extremely narrow definition of "lie". Defense lawyers tell juries things THAT THEY DON'T BELIEVE all the time. Indeed, THEY HAVE A FRICKING ETHICAL OBLIGATION TO MISLEAD THE JURY if it is likely to increase the chances of an acquittal.

But defense lawyers in court also don't get to tell the jury to apply a different legal standard than the one which in fact applies.

1. But that's because there is a legal standard. Here it's all up to the Senate.

2. If you want to play that game, prosecutors are also not allowed to do this, and all that crap about Hamilton that oozed out of Schiff's mouth was inadmissible in court too. The trier of fact gets to interpret the standard on its own.

The obvious solution here, other than eliminating impeachment entirely, is to write the standard into the Constitution, which gets us back to the OP and how badly drafted the Constitution is for purposes of application.

You can go ahead and do this, but you are so naive, Mark. Because SENATORS WANT TO GET ELECTED. We are talking about a body that votes every year to ban flag burning. They don't give two craps what is in the Constitution versus their reelction bids.

The Constitution isn't broken. This is literally the ONLY plausible way to do this.

Making it worse is that Dershowitz advertises himself as a professor of Con Law, not as a defense attorney. In fact he denied that he was acting as Trump's lawyer, a point noted by Orin Kerr.

So what? Are you going to claim that law professors shouldn't do criminal defense?

I learned how to practice law from Charles Weisselberg and Paul Hoffman, two law professors who did criminal defense work. Were they unethical?

The reality is there are subtle ways that impeachment proponents lapse into arguments where they just crap on the rights of the accused. This is a good example. Professor Alan Dershowitz represented the defendant in Tison v. Arizona, a guy who got railroaded. In your world, I guess he doesn't do that because his duties conflict with what you think law professors should do. Well, we need criminal defense lawyers, and we need them to mislead and distract juries, because I don't trust the judgments of the Mark Fields of the world to protect the rights of mostly black criminal defendants. You may not like Alan Dershowitz, but he has stood against the Leviathan power of the state. What have you ever done?
 

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Dilan: "High crimes and misdemeanors" is ambiguous, Bart.

Determining the constitutional standard for impeachment and removal is actually quite simple.

The legal term of art "high crimes and misdemeanors" has a centuries long English usage which includes crimes and maladministration (abuses of lawful exercises of power)

The Constitution's impeachment clause further restricts its meaning by preceding it with the crimes treason and bribery and the term "other." Thus, the clause as written restricts "high crimes and misdemeanors" to violations of the law on par with treason and bribery. Ejusdem generis

Any doubt concerning the inclusion of "maladministration" in that standard is dispelled by the fact the Convention expressly considered and rejected of this term, properly fearing the term was meaningless and allowed Congress the set POTUS terms.

The only possible ambiguity in the standard is whether it includes all violations of law or just serious crimes like treason and bribery. Given the Democrats fail to allege Trump violated any law, this small ambiguity does not come into play.
 

Bart, your analysis ignores that a political body, not a legal body, applies the standard, and is not subject to any appellate review.

There's no reason the framers expected that Senators would legalistically parse high crimes and misdemeanors using various canons of construction. They either expected a political judgment or were too stupid to know how the Senate works. I prefer the former explanation.
 

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Dilan, an education nihilist could just take an analog of your position here and say 'well, since every parent has sole power to direct their child's education then every parents direction is not open to criticism especially from experts. Education is just learning or upbringing and since parents have sole power here whatever upbringing or learning they choose for their child is unassailable.' You're assuming education has built into it something for which criteria exists to which parents decisions can be measured against, but this assumes certain goals of education (maybe I want my child to be well versed in the wisdom of Dr Phil, I consider that to be *what education is*).

As to juries you've admitted we *do* expose them to guidance via scholars when we give the latter input on things like proper jury instructions.

If the Constitutuon said 'Congress has sole power to remove Presidents' only you might have a point, but it includes a criteria for impeachment, high crimes and misdemeanors. This means that some things must fall in the category and some out, it also means that one, even a Senator, could get that wrong. Now, they have the power to get it wrong, but that doesn't mean there's no right or wrong, otherwise no criteria need be given (and that reading leads to as absurd results as those you're correctly posing to Bircher Bart).
 

Btw-violating the Constitution, a la Bircher Bart's comment about going to war contra Congress' power, =/= a violation of the criminal code.
 

"Avoidance of absurd results is a cannon used to resolve textual ambiguity, not absurd scenario"

Nope. It was also applied to where following the letter of the law leads to absurd results (like the old common law case where they did not let the son who murdered his father inherit under the will, which he should have taken as unambiguously written).
 

"The legal term of art "high crimes and misdemeanors" has a centuries long English usage which includes crimes and maladministration (abuses of lawful exercises of power)"

Bircher Bart elides that maladminstration did not mean abuse of lawful power, it meant that *plus* simply inefficient, incompetent administration (many British officials were impeached for the latter). Rejecting the term likely just means they didn't want that broadness, not that they were rejecting that abuse of power was a high crime or misdemeanor (which, as Bircher Bart concedes, it was understood to fall under). This reading is reinforced by the fact that under the colonies there were impeachments for non criminal acts and there's a string of impeachments by our own government (of judges and such) under non criminal grounds.
 

Another example for Dilan: let's say it's entirely up to Congress to decide if a state has a 'republican form of government.' A Luther type situation breaks out.

In a realist or nihilist sense you could say that 'since Congress has the sole power to decide this the right answer to what a republican form of government is is: whatever Congress says it is.'

But that's rank relativism with all its attendant problems (let's say a quickly subsequent Congress declares the same government not Republican, you'd have the philosophical gaffe all relativists fall into where X was Y when Z said it was but was also A when Z changed its mind even when X never changed!).

But further, it would be daft to say that people couldn't criticize the Congress' conclusion about what is republican and not, double daft to say, for example, that philosophers, political scientists, etc that long studied republican theory, history or workings should not be listened too on the subject.
 

What if we got a Sanders landslide with coat tails and Sanders and a friendly Congress then abolished every federal bribery statute that could possibly apply to him. Then Sanders went down Wall Street promising to give exemptions from legislation for bags of money. Could Sanders be properly impeached according to the 'must be in the criminal code' crowd (even though bribery would still be explicitly listed in the Constitution)?
 

What if Trump told his pardon office to coordinate with justice and the FEC. All substantial donors to GOP congressional candidates who were under any investigation or charge would have investigations/prosecutions dropped and or prospective pardons issued?
 

Consider that SCOTUS has said that a level of racism in the jury deliberation/decision can be sufficient to set aside a jury's verdict.

1. Jury has racism sufficient, is discovered verdict set aside.
2. Jury has same level, not discovered, verdict stands.

Dilan's position has to be that jury 1's decision was illegal, maybe wrongly decided (I'm assuming his position is less 'juries can't be wrong' but rather 'if the law legitimizes it it's right) but jury 2's was both legal and rightly decided. Passing strange.

Or take Jackson's censure, which was then rescinded. Jackson's behavior was worthy of censure in 34 and it was not in 37.
 

Dilan: Bart, your analysis ignores that a political body, not a legal body, applies the standard, and is not subject to any appellate review.

The fact elected representatives, as well as judges and law professors, ignore the Constitution as written does not mean the writing is ambiguous. It means we have a serious corruption problem.
 

Mista Whiskas said...What if we got a Sanders landslide with coat tails and Sanders and a friendly Congress then abolished every federal bribery statute that could possibly apply to him. Then Sanders went down Wall Street promising to give exemptions from legislation for bags of money. Could Sanders be properly impeached according to the 'must be in the criminal code' crowd (even though bribery would still be explicitly listed in the Constitution)?

Absent a statutory criminal code, the criminal common law in existence at the time of the Constitutional convention would kick in.

In the case of treason and bribery, both are also constitutional crimes, although the constitution does not define the latter.
 

BD: "Avoidance of absurd results is a cannon used to resolve textual ambiguity, not absurd scenario"

Mr. W: Nope. It was also applied to where following the letter of the law leads to absurd results...


Same thing said a slightly different way.

...(like the old common law case where they did not let the son who murdered his father inherit under the will, which he should have taken as unambiguously written).

Analogy is not your thing. In that case, the issue was not clarifying an ambiguous constitution or statute. The court changed the common law to disallow that scenario.
 

At some point, Mr. W. is going to be in trouble with animal welfare.

The horse has gotten enough, I think. :)

 

"Avoidance of absurd results is a cannon used to resolve textual ambiguity, not absurd scenario"

Mr. W: Nope. It was also applied to where following the letter of the law leads to absurd results"

"Same thing said a slightly different way."

"In that case, the issue was not clarifying an ambiguous constitution or statute. The court changed the common law to disallow that scenario."

Lol, poor Bircher Bart! Someone break out the sock puppets because he clearly doesn't get how he just missed my point and/or contradicted himself and confirmed my point here.

Clearly analogies are not his thing!


 

"Absent a statutory criminal code, the criminal common law in existence at the time of the Constitutional convention would kick in."

So when the Founders wrote 'Bribery' in the Impeachment Clause they meant by the term 'bribery as defined by current common law, but if you change it by statute then it means that, but if you by statute eliminate it it kicks back into the common law definition?'

That's goofy.
 

Btw-all the examples re Dilan are just to make the point that someone or thing having the authority to decide, determine, etc., a thing meets certain criteria is not the same as that someone or thing having gotten the determination, decision, etc., *correct.* They might be wrong, and people with special training, experience, etc., are often going to have potentially valuable insights into that.
 

BD: "Absent a statutory criminal code, the criminal common law in existence at the time of the Constitutional convention would kick in."

Mr. W: So when the Founders wrote 'Bribery' in the Impeachment Clause they meant by the term 'bribery as defined by current common law...


What part of "criminal common law in existence at the time of the Constitutional convention" did you misunderstand?

Reading for content is not your thing either.

...but if you change it by statute then it means that, but if you by statute eliminate it it kicks back into the common law definition?' That's goofy.

No, your run on sentence is incomprehensible.

Over the past century, statutory criminal codes displaced common law crimes for the purposes of clarity and uniformity. If we eliminated the statutory codes, the common law would come back into effect.
 


Dilan, an education nihilist could just take an analog of your position here and say 'well, since every parent has sole power to direct their child's education then every parents direction is not open to criticism especially from experts. Education is just learning or upbringing and since parents have sole power here whatever upbringing or learning they choose for their child is unassailable.


And I would prefer such a person to someone who said "you should raise your child in X way because this is what Thomas Jefferson said you should do while he was raping his slaves".

But also, it's not the same! As I said, you are moving from something where there is some sort of objective truth achievable by expertise- there really is a role for expertise in giving out parenting advice- to an area where there's literally nothing the "experts" can offer- the fact that Alexander Hamilton thought something was or wasn't impeachable is simply something a Senator should consider, and in fact, a modern Senator is in a far, far better position to determine that issue than a framer is (plus a modern Senator isn't a racist raping genocidaire).


As to juries you've admitted we *do* expose them to guidance via scholars when we give the latter input on things like proper jury instructions.


Jury instructions are very different from expert testimony from scholars. A jury instruction says what the law is, and it says it in a very broad, vague way, allowing the jury to fill in all the details.

The equivalent to a jury instruction in a Senate trial might be something like "you are required to determine if the President committed high crimes and misdemeanors that justify his removal from office. In doing so, you should consider all of the evidence and arguments presented by both sides".

That would be fine.

But jurors NEVER get to hear what scholars think. As I said, if you are convicted at a trial where the prosecutors quote or present a scholar as to what "reasonable doubt" means, that is structural error and your conviction will be reversed.

If the Constitutuon said 'Congress has sole power to remove Presidents' only you might have a point, but it includes a criteria for impeachment, high crimes and misdemeanors. This means that some things must fall in the category and some out, it also means that one, even a Senator, could get that wrong.

Not in a relevant sense. I mean, can a juror vote to convict someone who is innocent or to acquit someone who is guilty? Sure. Indeed, you can criticize a juror for doing that. But it is up to each individual juror to decide what "reasonable doubt" means. The views of scholars (and again, they are many) not only do not matter, but if they are even mentioned, you have a mistrial.

The Senators get to decide what a high crime or misdemeanor means. What Alexander Hamilton thought is irrelevant, and certainly does not define a "correct" view.

In a realist or nihilist sense you could say that 'since Congress has the sole power to decide this the right answer to what a republican form of government is is: whatever Congress says it is.'

The Guaranty clause is properly nonjusticiable, because nobody knows what a republican form of government is. But I would mention to you- the sort of stuff that everyone agrees would not be a republican form of government is also likely to violate numerous specific constitutional provisions.
 

Consider that SCOTUS has said that a level of racism in the jury deliberation/decision can be sufficient to set aside a jury's verdict.

1. Jury has racism sufficient, is discovered verdict set aside.
2. Jury has same level, not discovered, verdict stands.

Dilan's position has to be that jury 1's decision was illegal, maybe wrongly decided (I'm assuming his position is less 'juries can't be wrong' but rather 'if the law legitimizes it it's right) but jury 2's was both legal and rightly decided. Passing strange.


That's not my position, because racism in the jury room is reviewable in the courts.

Note though, that even here, a litigant isn't allowed to present evidence to a jury about racism in the jury room. It's policed by the trial and appellate courts.

Here, since the Senate's decisions are final, it polices itself. You may not like that, but that is the constitutional design.
 

If we eliminated the statutory codes, the common law would come back into effect."

Where does it say that in the text of the Constitution?

It's a plainly goofy view that we can alter common law by code but not eliminate it.
 

"But also, it's not the same!"

It's not, but not in the way you think. People think what Jefferson and the ratifiers had to say (or rather, what they understood things to mean) important because *they're the ones who passed the very provisions that we're all [you included, e.g., by pointing to 'sole power'] debating about! There's a legitimacy to going with the understanding when something was democratically adopted, other understandings should go through the same process (for example, amendment). That's the idea, anyway, for why someone should care what the Founders of the Constitution thought but not, perhaps, the Founders of parenting science.


"where there is some sort of objective truth achievable by expertise- there really is a role for expertise in giving out parenting advice"

It can easily be said there is no more objective truth re: 'what is proper parenting' than there is to 'what are high crimes and misdemeanors.' Because ultimately proper parenting involves a value orientation (do you want kids to be obedient? pious? inquisitive? adaptable? intelligent [within even this there's 'book smarts,' abstract reasoning, humane intelligence such as music appreciation, etc.,]. What there is, perhaps, is *if you identify what you want your child to be then perhaps some objective truth can be achieved re: which strategies better get kids there. In other words, there can be guidance about meeting certain given criteria. Now, if we posit that parents have *sole power* to direct parenting, then a parent can state their criteria and then objective expertise offered, and if they refuse we can say they have the right to do this but they are wrong to do so.

But impeachment and juries also are in the same boat. Both are given criteria they are told to meet and instructions (guidance) about how to apply the criteria. Now, if they choose to ignore that guidance they have the right to do so, and like the parent their decision 'stands' but it can still be said they wrongly applied the criteria/instructions.

"Jury instructions are very different from expert testimony from scholars."

Wrong. Scholars aid in coming up with jury instructions. Heck, many statutory crimes were given birth by scholars (Model Penal Code for example). Appeals courts not uncommonly cite the work of scholars in explaining what the law should be. Again, I don't know why you're so determined to die on this anti-elitist hill.

"But it is up to each individual juror to decide what "reasonable doubt" means. The views of scholars (and again, they are many) not only do not matter, but if they are even mentioned, you have a mistrial."

They are given instructions on what it means! If it's really just whatever a juror thinks then why the instructions? I mean, how silly would it be to tell my kid 'I am letting you to decide what your homework schedule. Here is what a proper homework schedule entails' and then say 'well, whatever he came up with is the proper homework schedule.' Again, this is just confusing the power to decide something with its correctness.


 

"The Guaranty clause is properly nonjusticiable, because nobody knows what a republican form of government is."

Again, don't confuse non-justificiable with 'correct' in the sense of 'well, Courts can't make a determination any better than Congress could so let's leave this to Congress'='well, whatever Congress decides must have been what it means to have a republican government.' Of course someone who studies republican philosophy, history and workings could, and properly so, look at what any given Congress decides about the republican nature of any particular government and say 'that doesn't jibe/make sense/etc.,'

I mean, is your point 'well they can do it, but who cares, the power is in the Congress.' Well, that's just a form of realism that makes what you criticized Warren for look like a charcoal kettle next to your black hole onyx pot. *And even* if you take this uber-realist view it still collapses, because even if 'the law is what 5 Justices say it is,' 'the correct verdict is what the jury says it is,' 'high crimes are what the Senate says it is,' etc., is true as an empirical matter of current authority, it's also true that *current authority* is often influenced by...things like scholarly arguments!
 

"That's not my position, because racism in the jury room is reviewable in the courts."

You're just compounding your initial problem: confusing authority with correctness. You initially raised the jury example to try to make your point 'the system authorizes the jury to decide the case, people, and especially, scholars saying the jury got it wrong are being foolish because they're authorized to decide.' Now you say 'well, it *can* be said they jury got it wrong, but only by X which is authorized by the system.'

My point in the analogy is that if you're relying on the authority to make something right then you get into the area where if the authority catches Y and determines it's wrong it's wrong, but if it doesn't catch it and determine it's wrong then the *very same Y* is now suddenly OK (and not to be criticized!!!).

This is the problem all relativist (and 'might' or authority makes right is just a form of relativism) falls into.

To get back to the start of the circle, you started this with criticism of professors like Mark, Sandy , etc., who present arguments that there are better and worse understandings of what 'high crimes' means *apart from what those authorized to decide the matter decide.* You claim that it can only be said to mean whatever those authorized say it is. But this, for one thing again, has all the problems of relativism, for example there are cases where the authorizer will say something means X and then turn right around and say the same thing means not-X (the censure example), and it defies logic that both were correct. But also, and more importantly, if 'high crimes' just means 'whatever the Senate thinks' then *there's no reason to have the former term in there at all*! The fact that the term is in there strongly implies that there is criteria, a conceptual criteria, that exists *apart and independent* from just 'whatever the Senate thinks.'
 

Just wanted to take a second to point out Bircher Bart's silliness again:

Dilan told Bircher Bart there's a long held doctrine to avoid interpretations with absurd results.

Bircher Bart said, no, that doctrine only applies in resolving ambiguous language.

I noted, nope, that's not true, in the famous common law case there was no ambiguity, the court ruled they would not follow the unambiguous common law doctrine because it would create an absurd result (the murderer inheriting from his victim).

Bircher Bart then said no, you don't get it Mista, "the issue was not clarifying an ambiguous constitution or statute. The court changed the common law to disallow that scenario."

WHICH WAS EXACTLY MY INITIAL POINT (and Dilan's btw). And he was so partisan incoherent he didn't get that he was confirming my point and contradicting his own!

Not. A. Serious. Man.
 

"professors like Mark, Sandy"

I'm not a professor. It's unclear where that leaves me on the hack spectrum.

"The horse has gotten enough, I think. :)"

The Senate is free to decide if the horse still lives or not. Alan Dershowitz will provide the standard.
 

It's not, but not in the way you think. People think what Jefferson and the ratifiers had to say (or rather, what they understood things to mean) important because *they're the ones who passed the very provisions that we're all [you included, e.g., by pointing to 'sole power'] debating about!

Well, first of all, originalism has LOTS of problems with respect to ANY constitutional or statutory provision.

But let's say we concede that originalism is in general a good way to interpret constitutional provisions. The problem here is the what you might call the "Eighth Amendment" problem with originalism.

The Eighth Amendment prohibits cruel and unusual punishment. The framers thought various punishments available in 1791 were not cruel. Should we listen to them?

Of course not, and even most conservatives agree, along with all liberals. Why? Because honestly only a complete idiot would think that the notion of what is "cruel and unusual" is fixed in 1787, or that what was expected was that the courts would look at whatever was allowed in 1787 and allow it. This is the Trop v. Dulles standard of "evolving standards of decency".

Well, guess what. High crimes and misdemeanors is the same way. Why do I know that? Because the framers kicked it to the Senate. They knew and expected that Senators would examine the political context to determine what a high crime or misdemeanor was.

And therefore what a scholar says that Hamilton would have thought is no more useful than whatever George Washington thought about flogging a convict.

It can easily be said there is no more objective truth re: 'what is proper parenting' than there is to 'what are high crimes and misdemeanors.

At this point, YOU'RE THE NIHILIST. Look at you! Arguing that outcomes in parenting are impossible to study, no more objectively verifiable than an unanswerable philosophical debate about when a President can be removed. I feel really bad for your children if you really believe this.

But impeachment and juries also are in the same boat. Both are given criteria they are told to meet and instructions (guidance) about how to apply the criteria.

At this point, I am not going to repeat myself. You are just wrong. Any jury that is given "guidance" about reasonable doubt and then convicts a defendant will see that conviction overturned. Criminal defendants literally have a constitutional right in this country to an UNGUIDED jury.

And that happens to be the correct rule. If we allowed scholars into that process, innocent people WOULD be imprisoned and executed.

This is the problem all relativist (and 'might' or authority makes right is just a form of relativism) falls into.

These are complete misrepresentations of my position. I am neither a relativist nor do I believe that might makes right.

Indeed, in no sense do I think that you can't criticize the Senate as wrong. I simply argue that SCHOLARS have no special authority to do so, and that to apply the beliefs of the rapists and genocidaires who founded this country to criticize the modern Senate is IMMORAL.

My morality starts with the idea that we shouldn't listen to rapist misogynist racist slave owning jerks, or the scholars who justify their intrusions into the political process based on what they say.
 

Dilan,

The Senate can impose restrictions on both House managers and defense lawyers. They can impose conflicts rules if they wish.

I have no idea why you think this is responsive to my point.
 

I have no idea why you think this is responsive to my point.

I think I was clear: I agree Pat C has a potential conflict of interest, I think that the Senate could have decided to preclude him from the trial on that ground, but they also could decide it didn't matter because it's a political proceeding.
 

I am going to try and boil down my argument because Mista thinks I am nihilistic and that's wrong.

1. I think we all should be arguing the substantive question of whether President Trump should be removed. I further think that while I have an opinion on that question, informed mostly by public opinion but somewhat by what I think he did or didn't do, that is also a question that reasonable people can disagree on, and I further think that any American has a say on that question.

2. I do not believe that any scholar has any expertise on question 1, because it is a question about values and what sort of President Americans want and what they think of the gravity of the President's conduct, none of which are things that are within the expertise of scholars.

3. Even if I thought that a scholar might have any expertise on question 1, the type of scholar who would, would be a moral philosopher or some sort of expert on the operations of government. I think scholars of the framers have no part in this discussion, because the framers were awful people who we shouldn't listen to anyway.

4. I think the Senate, like a jury, should simply come to its own conclusion on 1. I don't object to some sort of broad jury instruction, but no evidence should come in on what the "meaning" of high crimes and misdemeanors is, because the clear constitutional design was for the Senators to decide that on their own just like jurors decide reasonable doubt.

5. I also think that the "scholars of the framers" are not staying in their lane. I think they are essentially partisans who would LIKE to have some special authority where everyone listens to them on what is and isn't impeachable. That is a separate reason to rebuke them.

6. None of this is nihilist or amoral. It is simply trying to eliminate extraneous stuff and the stupid worship of the awful people who founded this country, in favor of debating the actual moral question regarding the President's conduct, which is a legitimate and vexing one and has nothing to do with whatever some 18th Century bigoted rapist thought.
 

I saw something watching the UNC FSU basketball game.

A FSU player took three steps without dribbling and shot. The referees called nothing.

"Hey, didn't he travel?" yelled Dick Vitale.
"Apparently not" said Sean McDonough.

I'll leave it to readers as to whose comment I think encapsulates Dilan's views here.
 

"The Senate is free to decide if the horse still lives or not. Alan Dershowitz will provide the standard."

Only arrogant veterinarians could complain about their determination!
 

Prof. Field on point.
 

I'll leave it to readers as to whose comment I think encapsulates Dilan's views here.

Funny, but there's an old story about Red Sanders, the best football coach UCLA ever had, being asked about a missed official's call by a UCLA booster.

He replied "well, did the man in the striped shirt throw a flag?". The booster said no. "Well, then, I guess it wasn't a penalty."

Mr. Sanders won a lot of football games while a lot of coaches that whined about the refs had inferior records.

And there's a lesson in that in life. You don't get anywhere in this world whining about officials' decisions.

(Having said that, it is again a tired mischaracterization of my position that I don't care about right and wrong. Indeed, I think my refusal to care about what a bunch of horrible bigoted racists and genocidaires who founded this country think about impeachment is a sign of moral superiority, not nihilism.)
 

the understudies shuffle between the school, other curricular exercises and different things. Between this, the understudies scarcely get at whatever point for focusing on their scholastics.
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I agree Pat C has a potential conflict of interest, I think that the Senate could have decided to preclude him from the trial on that ground, but they also could decide it didn't matter because it's a political proceeding.

Something has been lost in translation.

My original point was that I do not find Dershowitz' performance admirable, because his position was "ridiculous in about 50 different ways."

As this is a political process, not a criminal trial, we should not use the standards we apply to a defense lawyer to judge the advocates here. They are more in the position of politicians arguing for policies they favor than defense lawyers trying to keep their clients out of jail. Vigorously and tenaciously making foolish arguments is not, in the impeachment case, admirable conduct. This is because removal, or not, of the President, has major consequences for the country, while gaining an acquittal in a criminal trial usually does not.
 

This comment has been removed by the author.
 

BD: If we eliminated the statutory codes, the common law would come back into effect."

Mr. W: Where does it say that in the text of the Constitution? It's a plainly goofy view that we can alter common law by code but not eliminate it.


None of these statutory codes purport to eliminate common law. They supplant it.

A good analogy is the Roe case creating a right to abortion while state statutes banning abortion remain on the books. If Roe is reversed, then those statutes go back into effect. This prospect is why blue states like NY have been revising their old abortion statutes.

The issue more directly crops up when state legislature change statutes modifying tort common law.

Mr. W: Dilan told Bircher Bart there's a long held doctrine to avoid interpretations with absurd results. Bircher Bart said, no, that doctrine only applies in resolving ambiguous language.

The Absurdity Doctrine holds a provision may be either disregarded or judicially corrected as an error if failing to do so would result in a disposition that no reasonable person could approve. The text creates the unreasonable result.

Dilan was not arguing the standard for impeachment and removal (violation of the law) created an unreasonable result. Rather, he was offering an absurd scenario to argue the standard was not broad enough and then erroneously cited the absurdity doctrine to support his argument.
 

Vigorously and tenaciously making foolish arguments is not, in the impeachment case, admirable conduct.

I agree with you the stakes are lower. But you know, even in civil cases, zealous advocacy sometimes steps on some toes. It's up to juries to call BS- we only prohibit tactics that are going to be significantly prejudicial.

And I will tell you that in 1999, not everyone on the Clinton defense team played nice either. Dale Bumpers did, but David Kendall and Charles Ruff made some arguments that were pretty close to what Dershowitz did here. But they were representing their clients. Good advocacy doesn't always make you friends.
 

Dilan was not arguing the standard for impeachment and removal (violation of the law) created an unreasonable result.

I think an over-legalistic take on "high crimes and misdemeanors" could lead to any number of absurd results.

Honestly, I am not worried that this will ever take hold, as I think the Senate will always place political considerations over some sort of narrow textualism, but this is one reason the framers kept this decision out of the hands of judges.
 

"As this is a political process, not a criminal trial, we should not use the standards we apply to a defense lawyer to judge the advocates here."

This seems pretty obvious. Plus we have the related point that Dershowitz expressly denied that he was part of Trump's defense team, implying that he was speaking as -- THE HORROR -- a [hack] Con Law professor.
 

This comment has been removed by the author.
 

Dilan: Honestly, I am not worried that this will ever take hold, as I think the Senate will always place political considerations over some sort of narrow textualism...

I am also increasingly discouraged the political parties will ignore the Constitution's limits on their power and use impeachment and removal as the political weapon the drafters expressly rejected.
 

"Dershowitz expressly denied that he was part of Trump's defense team"

He was though. But, the basic point made is fine.

Anyway, as to the Pat Cippolone thing I referenced, whatever the choice of the Senate, he still can still be breaking some independent ethical rule etc. that he has an obligation to follow. He doesn't have some sort of immunity from all of that because the Senate in this context allows him to serve as Trump's personal counsel.

As a general point, there is so much confusion going on during the impeachment process, including basically intentional confusion. Someone of Sandy Levinson's profession making things worse probably is of special concern but I think he is a relatively trivial player here. I think people have limited respect for him even as compared to other members of the team, particularly someone who is actually a member of the White House counsel office & is seen to have certain higher ethical obligations and likihood not to be a hack than someone like Alan. D.

So sad Ron Silver is no longer around to play him. I see years back this blog talked about his torture warrant idea.
 

"He was though."

Of course. I'm guessing the idea was that he'd gain more credibility by appearing to speak as a disinterested scholar, though his hyper-textuality doesn't have any real support among actual scholars. But I personally would have had less problem with his argument if he'd been upfront about his role as a defense counsel. While I think his argument has no merit, it does not violate Rule 11 or anything like that. He'd be free to make it to any court, though I'd hope a non-partisan court would reject it.

"Anyway, as to the Pat Cippolone thing I referenced, whatever the choice of the Senate, he still can still be breaking some independent ethical rule etc. that he has an obligation to follow. He doesn't have some sort of immunity from all of that because the Senate in this context allows him to serve as Trump's personal counsel."

Yes. His behavior was much more objectionable than Dershowitz's, though the latter's got more attention.
 

Joe:

The Senate rules preempt any State Bar regulation of what lawyers say in the Senate.
 

And if the Senate thinks it is OK, it is OK. If the Senate wants to hear from Pat C, or Dershowitz that is their call. If the Senate allows it, it's ethical.
 

Do we have any Iowa caucus goers here?
 

Like most propagandists Bircher Bart is both prone to say stupid things and then be dishonest about the fact that he did. But here's the tale of the tape:

But other meanings of absurd abound in the law and a common one is 'unthinkable to a rational, moral, semi-objective person.'…
# posted by Mista Whiskas : 3:55 PM

But other meanings of absurd abound in the law and a common one is 'unthinkable to a rational, moral, semi-objective person.'
The law, including rules of statutory interpretation, includes the canon of avoiding absurdity.

# posted by Dilan : 10:05 AM

Avoidance of absurd results is a cannon used to resolve textual ambiguity, not absurd scenarios.



# posted by Bart DePalma : 10:09 AM


Bart clearly, and wrongly, tried to argue that the absurdity doctrine is not used traditionally to avoid interpretations leading to absurd results generally but rather was limited to when there was textual ambiguity.

This is not a serious man.
 

"You don't get anywhere in this world whining about officials' decisions."

You must not watch much sports Dilan, because questioning official's calls (even when the official has the 'sole power' to make the call and their call is irreversible) is a ubiquitous thing in sports coverage. In fact, NFL and College football even hire 'rules experts' (those arrogant fiends!), former referees and other officiating experts, to review official's calls on the field.
 

"it is up to each individual juror to decide what "reasonable doubt" means. The views of scholars (and again, they are many) not only do not matter, but if they are even mentioned, you have a mistrial."

"the clear constitutional design was for the Senators to decide that on their own just like jurors decide reasonable doubt."

Here's the jury instructions that jurors are given to guide them on what 'reasonable doubt' means.

https://www.mass.gov/files/documents/2016/11/vt/2180-reasonable-doubt.pdf

I also looked it up, and do you think no professors sit on the committee drafting these jury instructions? Don't bet a lot they don't ;).

So, to further put my point, here's the thing: while yes a juror has the power, absent the areas where their decision can be reviewed like racism, to make the decision that, say, a defendant is guilty 'beyond a reasonable doubt' when the juror in fact thinks the defendant is a strong probability, that the defendant is more likely to be guilty than not guilty. But that juror would have decided wrongly, and of course watchers should be able to criticize and experts, like the professors who write the jury instructions, should be especially listened to as to why and how the juror is wrong.

I think everyone can make the impeachment high crimes analogy without me doing so (well, maybe our Birchers can't, but I'm not writing this for them).


 

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So, Dilan, it seems like you've kind of backed off your initial position to a more modest one where you hold that it's just particularly the experts who point to the Founders re high crimes and misdemeanors that are arrogant or silly to think they have a special say, on the grounds that the Founders were awful people so who would look to what they say.

I'd say first that if that's your position it's odd to write it in response to Sandy's post-Sandy is many things but a uncritical reverer of the Founders he is not! Secondly, apart from Sandy, *many* legal scholars focused on the kind of arguments that you make here, functionality (that the function of an impeachment clause means it cannot logically be limited to things in the criminal code). So try to avoid such sweeping generalizations about law professors in general.

But I'd like to say more. I bow to no one in thinking critically of, at least many of, the Founders. We revere many of them far, far too much (in fact many we should freely and openly condemn). However, there are two strong arguments why I think what they thought about high crimes is important 1. the argument that in a democracy statutes should be interpreted as those that voted them in understood them, if future generations understand them differently they should pass democratically their own replacements (this is of course originalism, I'm not an originalist but I recognize as a political reality that many are and it's not a crazy view so a reasonable professor could weigh in on originalist grounds) and 2. many Senators have before the trial and will after the trial point to originalist grounds for their decisions. In other words, whether you think it's a silly or immoral ground to base an interpretation, you have to realize that for many of the people making the decision it is not, therefore it makes much sense for those, like professors, seeking to sway or scrutinize the votes/rationales of those Senators to point to the Founders. Ironically it's kind of you that is arrogantly saying 'originalism is immoral and dumb, Senators shouldn't use it here and if they do professors who scrutinize their originalist positions are being immoral and dumb!'
 

"statutory criminal codes displaced common law crimes for the purposes of clarity and uniformity. If we eliminated the statutory codes, the common law would come back into effect."

Here is why this is goofy to me.

Let's say there is common law breaking and entering and common law burglary, with the latter defined as 'the breaking and entering of a dwelling in the night with the intent to commit a felony.'

The legislature says 'that night stuff is silly, let's excise it' and they pass a statute criminalizing burglary as 'the breaking and entering of a dwelling with the intent to commit a felony.'

Then the legislature says 'that dwelling part is silly, let's excise it' and they pass a statute criminalizing burglary as 'the breaking and entering with the intent to commit a felony.'

Then the legislature says, 'this need not be a specific intent crime' and they pass a statute criminalizing burglary as 'breaking and entering.'

Then, after a Sanders fifth term no doubt, the legislature says 'all places are common places now, so breaking and entering is meaningless' and they just strike the burglary law altogether.

It's goofy to say that suddenly the common law burglary would be in effect.
 

Mr. W., I wasn't going to un-lurk, but I've got to add, in response to Dilan -- Just because we find the views and beliefs of the Founders of this country objectionable in many ways, that does not mean they weren't in other ways wise. What would you give the probability that some person in the future, a couple hundred years from now, reading these threads, would say -- "what vile and despicable people these were. We should relegate all their beliefs, not merely those relevant to impeachment (which we now perform on a daily basis...) to the dustbin of history."

These people were rather enlightened, for their time, in many ways. And they were also, lest we forget, trying to create something that was new and original. If they made some errors in design, should we, in hindsight, sneer at them?

 

C2H5OH
I agree it's nuanced. I try to judge them by their time. For example, I think it's laudable when someone like Washington comes around to freeing his slaves at the end of his life, and, to me, it save his legacy. On the other hand, I think the fact that Jefferson doubled down on slave owning (having children whipped for not working hard enough in his nail factory) removes him from someone I would want to honor.

I do get Dilan's point though, his 8th Amendment example is actually quite good. It would be horrible to think, like Justice Thomas does, that what the Founders thought about what is 'cruel and unusual' is a limitation on the 8th Amendment. Many of the Founders were quite humane and enlightened on the subject *compared to other ruling elites and much of the general public of our own nation,* but their ideas would seem, well, cruel and unusual to us today.

To me, the argument that impeachment must include things like what Trump did rests better on an argument about functionality and logic-an impeachment clause that wouldn't stop a President from doing all kinds of technically lawful things with the motive and aim of political retrenchment wouldn't be of much use, wouldn't function to ward off the kinds of things it's intended to. The argument that the Founders understood high crimes to include non-code crimes is secondary, and important at least because so much of the public and politicians think we should hold up the Founder's understandings as guides, so I'm just not as adamant about Dilan's upsetness that orignalist scholars are weighing in. I also think that in his arguments Dilan comes at least very close to relativism or nihilism (since the Constitution gives Congress 'the sole power' to impeach high crimes *just are* whatever the necessary number of Congresscritters say they are).
 

The Founders were also quite knowledgeable about both political theory and practical politics (nearly all of them had substantial experience in government). Now, their experience and knowledge date back over 200 years, so we don't need to take their views as gospel. They themselves didn't do that for older ideas; as good children of the Enlightenment, they understood that progress was possible in the "science of government" (as they would say). So we need to take their arguments seriously but not as definitive.

An additional factor is that in order to get a good sense of where we are today, we need to understand how we got here: what factors motivated previous understandings of the law; have those factors changed; what wrongs were they trying to correct, and are those wrongs still important now; has practice in the law disclosed ambiguities we should clarify; etc. In short, I'd argue that a historical understanding that begins with the Founders or even their predecessors and continues until the present will give us a better understanding of where we are and what we need to do.
 

And I also get what I think is your larger point, that even a Founder with awful views on, say, the capabilities and rights of blacks or women or gays, etc., could have had quite wise things to say about when and for what a leader of the country should be removed. I agree. I mean, Wagner was a horrible anti-Semite and poor philosophical thinker, but many of his operas are wonderful. Likewise, a Founder might have been horribly racist even by the standards of his time and yet been quite insightful about, say, how the separation of powers could work to stave off autocracy.
 

One of my favorite lines in the musical 1776 is from Ben Franklin:

John Adams: Mark me, Franklin... if we give in on this issue, posterity will never forgive us.

Dr. Benjamin Franklin: That's probably true, but we won't hear a thing, we'll be long gone. Besides, what would posterity think we were? Demi-gods? We're men, no more no less, trying to get a nation started against greater odds than a more generous God would have allowed. First things first, John. Independence; America. If we don't secure that, what difference will the rest make?


They were flawed people who made compromises given the realities of the day. It to me is inappropriate and not really the right way to honor them (if honor them one wishes) or remember them to treat them as demigods or devils. They are complex beings and the constitutional provisions they crafted should be taken with that in mind.

Anyway, we have to deal with today and today's understandings though history provides some assistance in the regard.
 

Btw Mark, I did not know you were not a professor. For some reason I long thought you were a political science prof! Oh well, this is also the guy that for years called Shag 'Shaq.' Glad for your contributions whatever your calling :)
 

(Ben Franklin was also probably placating John Adams. He was a realist and probably realized posterity would not have John Adams' purity of principle on such subjects.)
 

"Here's the jury instructions that jurors are given to guide them on what 'reasonable doubt' means."

The law, enforced by judges not the jurors themselves, constrains juries in lots of other ways too: the evidence they get to see, the arguments lawyers get to make, the ability of the jurors to seek information outside the courtroom and talk to other people, etc. The legal system isn't perfect by any means -- I have lots of criticisms -- but it does have a sense of what's necessary to make a jury determination generally fair.
 

Mr. W. -- As a non-lawyer, let me just say that the idea that a person's position does not matter when their actions are weighed for legality or morality is ridiculous. Let me ridicule it a bit: take the banker who refuses to loan a black man any money because that person is black. That would be illegal, correct? What about the fellow homeless man who refuses to lend a fellow homeless man money for the same reason?

That a person in high position can commit acts that, for others, would not be unlawful is obvious. And the idea that all acts that should be illegal have been made illegal seems to run afoul of the "completeness paradox" -- from mathematics. (Briefly, any set of axioms complete enough to prove or disprove all assertions in that mathematics must contain statements which can both be proven and disproven -- contradictions, in other words.) And this doesn't even take into account the fact that, as society and technology changes, things which heretofore were impossible become possible, if not trivial.
 

Mr. W: Then, after a Sanders fifth term no doubt, the legislature says 'all places are common places now, so breaking and entering is meaningless' and they just strike the burglary law altogether. It's goofy to say that suddenly the common law burglary would be in effect.

Actually, if the legislature enacted a law making all private property public, then it mooted the common law crime of burglary.

Absurd scenarios aside, the reality remans: if the legislature repeals a statute supplanting the common law, the common law comes back into effect.
 

Thanks MW. I probably write like a professor (no compliment) or even worse, a lawyer. Also, I misspelled Shag's name for quite a while too.
 

"if the legislature repeals a statute supplanting the common law, the common law comes back into effect."

Whether that's true or not (and if Bircher Bart says it's true one should, of course, automatically be skeptical, but even broken clocks and conspiracy theorists have to right some time perhaps) it's still goofy. If a legislature removes the dwelling, then the nightime, then the specific intent, and then eliminates the offense altogether it's goofy that it would come back with all the elements that had been explicitly rejected along the way.

I mean, sodomy was a common law offense. Many jurisdictions passed sodomy statutes. And then, even before Lawrence, some repealed them. Did common law sodomy come back into effect when they did? That's goofy.
 

"The law, enforced by judges not the jurors themselves, constrains juries in lots of other ways too"

Indeed, good points, but as I said, the very fact that the jurors are given instructions as to how to *properly* think about and apply certain legal concepts strongly implies that there must be ways that the jurors could *get them wrong.* And this would be true even if the juror's mistake was unreviewable (either as a matter of law or practicality [it never got out what was said or thought contra the reviewable incidents]). If it were just all up to the juror they'd just say 'ok, tell us if this guy is, in your opinion, guilty beyond a reasonable doubt or not!' Likewise, the very fact that the Constitution sets a criteria, treason, bribery and other high crimes and misdemeanors, strongly implies that even if they have the sole power to determine what that means and that their determinations are not reviewable, that Senators could *get it wrong.* Otherwise just the sole power language would be all that would be in there.
 

Mr. W: I mean, sodomy was a common law offense. Many jurisdictions passed sodomy statutes. And then, even before Lawrence, some repealed them. Did common law sodomy come back into effect when they did? That's goofy.

Law has a hierarchy: (1) constitution, (2) statute, then (3) common law.

Under your scenario, Lawrence created a right to sodomy which supplanted both statutory and common law sodomy crimes. So long as Lawrence is in effect, the fact a state may have repealed a sodomy statute is meaningless because both the statutory and the underlying common law sodomy crimes are unenforceable.
 

"Indeed, good points, but as I said, the very fact that the jurors are given instructions as to how to *properly* think about and apply certain legal concepts strongly implies that there must be ways that the jurors could *get them wrong.*"

Your point alone is enough, of course, but the fact that we prevent juries from hearing certain evidence, etc., is further evidence that we think juries could get things wrong.
 

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