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The Eastman Emails, the Attorney Client Privilege, and the Mazars Overhang

In a recent Lawfare piece, Quinta Jurecic and Molly Reynolds argue that the Supreme Court’s 2020 decision in Trump v. Mazars, though limited by its terms to congressional subpoenas for the personal records of a sitting president, is having a profound effect on the broader legal landscape for the January 6 select committee and other congressional investigations. As further evidence of this phenomenon, I would point to the select committee’s recent filing in the John Eastman lawsuit, in which Eastman is seeking a court order prohibiting Chapman University, where he had been a law professor, from releasing to the committee allegedly privileged emails that Eastman sent or received through his university account. Specifically, Eastman claims that certain emails are privileged attorney-client communications and/or attorney work product arising out of his representation of Donald Trump, in his personal capacity as a candidate for office, and the Trump presidential campaign.

In a brief filed last week, the select committee advanced several arguments against Eastman’s claim of privilege, the most sensational of which was the committee’s contention that “evidence and information available to the Committee establishes a good-faith belief that Mr. Trump and others may have engaged in criminal and/or fraudulent acts, and that [Eastman’s] legal assistance was used in furtherance of those activities.” As this quote suggests, the committee’s argument is merely that there is sufficient evidence to warrant in camera review of the disputed material. Even if the court agrees with the committee on this point, it may ultimately conclude after review that the crime-fraud exception to the attorney-client privilege does not apply.

What I want to focus on today, however, is an argument that the committee did not make. At the outset of its brief, it refers to the standards applicable to establishing attorney-client privilege “to the extent attorney-client privilege applies in the context of a Congressional subpoena.” To explain this reference, the brief drops a footnote directing the reader to pages 37-39, which I suspect originally contained an argument that congressional committees are not bound to recognize common law privileges at all. This argument, however, was evidently removed, and now the committee’s discussion of the issue is confined to a footnote (no. 74), which states:

Congress has consistently taken the view that its investigative committees are not bound by judicial common law privileges such as the attorney-client privilege or the work product doctrine. See generally, Congressional Research Service, Congressional Oversight Manual 61-62 (March 21, 2021). This aspect of Congress’s investigative authority is rooted in the separation of powers inherent in the Constitution’s structure. Id. Congress and its committees make decisions regarding such common law privileges by balancing the important institutional, constitutional, and individual interests at stake on a case-by-case basis. Here, Congressional Defendants have determined, consistent with their prerogatives, not to submit an argument on this point. This is not, however, intended to indicate, in any way, that Congress or its investigative committees will decline to assert this institutional authority in other proceedings.

I am sure Senate Legal Counsel is relieved to hear the select committee is not purporting to waive the rights of “Congress or its investigative committees” in all future investigations, but why did the committee decide not to assert this longstanding congressional view here? In many ways this case would seem to provide a perfect illustration of why Congress believes it should not be bound by common law privileges. Continue reading “The Eastman Emails, the Attorney Client Privilege, and the Mazars Overhang”

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Why the Courts Have NOT Decided the Constitutionality of Proxy Voting

A few weeks ago the Supreme Court denied certiorari in a case brought by House Republicans to challenge the constitutionality of the House’s proxy voting rule, which allows members, during a period of “public health emergency,” to vote on legislation and other matters without being physically present. The effect of the Court’s decision was to leave standing the D.C. Circuit’s decision to affirm the district court’s dismissal of the lawsuit on grounds of the Speech or Debate Clause. Speaker Pelosi praised the Court’s action and declared “[b]oth the Constitution and more than a century of legal precedent make clear that the House is empowered to determine its own rules—and remote voting by proxy falls squarely within this purview.” Yesterday the Speaker, based on a notification from the Sergeant-at-Arms and the Office of Attending Physician, extended the period of proxy voting through March 30, 2022, at which point the “public health emergency” will have lasted almost two years.

Contrary to the Speaker’s suggestion, neither the Supreme Court’s action nor the rulings of the lower courts say anything about the constitutionality of proxy voting. To the contrary, both the constitutionality and necessity of the House’s rule remain live issues, and the House should not be misled into thinking that the courts have resolved them. Continue reading “Why the Courts Have NOT Decided the Constitutionality of Proxy Voting”

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Is the January 6 Committee Improperly Constituted?

Now that the Supreme Court has poured cold water on the executive privilege arguments being made by certain witnesses who have declined to cooperate with the January 6 select committee, a different objection by many of these witnesses takes on added importance. According to the lawyers for Mark Meadows, Jeffrey Clark, and others, the committee lacks the power to issue subpoenas or take other actions because it was constituted in violation of Section 2(a) of its authorizing resolution, H. Res. 503, which provides: “Appointment of Members—The Speaker shall appoint 13 Members to the Select Committee, 5 of whom shall be appointed after consultation with the minority leader.”

Acting pursuant to the resolution, Speaker Pelosi appointed eight members to fill the “majority slots” on the committee, seven of whom were Democrats and one (Liz Cheney) a Republican. She consulted with Majority Leader McCarthy regarding the remaining “minority slots,” but she rejected two of McCarthy’s five recommendations, declaring that Jim Banks and Jim Jordan had made statements regarding the proposed investigation that she claimed “make it impossible for them to exercise judgment.” Pelosi was willing to appoint the other recommended members, but they declined. Pelosi then appointed Adam Kinzinger (the only Republican other than Cheney who was willing to participate under these circumstances) to one of the minority slots, leaving the other four vacant.

It is contended that these actions violated Section 2(a) of the authorizing resolution in two respects. First, Pelosi appointed only nine members of the select committee, rather than the 13 specified by the resolution. Second, although she consulted with McCarthy, she did not appoint any of the five members he recommended.

Let’s start with the second point. A strong version of this claim would be that the authorizing resolution required Pelosi to appoint whatever members McCarthy recommended and left her with no discretion in the matter. This interpretation is hard to square with the language of the resolution, which requires merely “consultation” with the minority leader. If the House had wanted to constrain Pelosi’s discretion in this manner, it could have easily said so. Indeed, as the House points out in a recently filed brief, prior select committee resolutions have used stronger language (i.e., requiring that minority slots be filled “on the recommendation of the Minority Leader”), which could more plausibly be interpreted to require that the speaker appoint only members recommended by the minority. Here there is no indication that the House intended to make Pelosi’s power to appoint a mere ministerial act.

Continue reading “Is the January 6 Committee Improperly Constituted?”

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Lawfare Podcast on January 6 Committee and Potential Subpoenas of Members

In today’s Lawfare podcast, Quinta Jurecic hosts Molly Reynolds and me to talk about the January 6 committee’s efforts to question House members about matters pertinent to its investigation.

The more I think about it, the more I lean toward the view that if the committee decides to subpoena members, it will pursue enforcement by means of a civil lawsuit, rather than a criminal contempt referral or some sort of internal disciplinary proceeding. This will allow the committee to keep attention focused on the fact that these members are refusing to provide information (as well as require them to explain their reasons for doing so in court), while minimizing their ability to claim political martyrdom. It also will allow the committee to avoid bringing the matter to the floor; a civil action can be authorized by the Bipartisan Legal Advisory Group without forcing rank and file members to vote on a politically charged matter. The committee can also point to some precedent for such an action; the Senate Ethics Committee brought suit against Senator Packwood to enforce its subpoena for his diary.

The downside is that the case will probably take too long for the committee to get any useful information this year. That’s why the committee has refrained from using this method of enforcement for other witnesses. But here the committee is more concerned with the potential political consequences and the internal precedent regarding subpoena of members; recognizing that they may soon be in the minority, Democrats do not want it to be too easy for House committees to subpoena members in the future.

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History, Precedents, and Rule of Law

Apropos of nothing, I am republishing (ie, stealing) this post by a House parliamentarian, Max Spitzer, who is the precedents editor in the House Parliamentarian’s Office (Motto: please do not send us Liz MacDonough’s hate mail).

On May 31, 1789, James Madison, then a member of the House of Representatives during the First Congress, wrote a letter to Edmund Randolph, who would soon after be appointed the nation’s first Attorney General. In that letter, Madison discussed the current work of the House, in particular the relatively slow pace of deliberations. He wrote: “[I]n every step the difficulties arising from novelty are severely experienced, and are an ample as well as just source of apology. Scarcely a day passes without some striking evidence of the delays and perplexities springing merely from the want of precedents. Time will be a full remedy for this evil…’’ [emphasis added]

The evil that Madison sought to avoid was inconsistency and arbitrariness in parliamentary practice. The new Congress was necessarily obligated to address many procedural questions as matters of first impression. Lacking established traditions, norms, or practices, the House of Representatives had to feel its way forward slowly, gradually developing a system of rules, procedures – and precedents. As Madison correctly surmised, time did provide a remedy. As questions of procedure arose and were resolved by the House, its parliamentary principles became fixed points of reference – precedents – that could be relied on in deciding new cases.

A contemporary of Madison’s, Thomas Jefferson, also recognized the value of precedents. In section 1.2 of his Manual of Parliamentary Practice (composed during his time as presiding officer of the Senate), Jefferson asserted that “[i]t is much more material that there should be a rule to go by than what the rule is; that there may be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members’’ (emphasis added). This quote again highlights a key advantage of having an established body of precedents to rely on: consistency, predictability, and reliability. Such a body of work also fulfills Jefferson’s vision of a “parliamentary branch of the law’’ (Jefferson letter to George Wythe, February 28, 1800).

The precedents of the House stand on the same foundation as our common law legal tradition, exemplified by the Latin maxim stare decisis (or “let the decision stand’’). In any legislative body, the same procedural points occur time and again, and there is little point in re-litigating questions that have already been thoroughly discussed. By adhering to prior procedural rulings, the House is able to achieve the consistency and predictability that Madison and Jefferson thought vital to the legislative process.

Another contemporary of Madison and Jefferson, John Adams, defined a republic as “a government of laws, and not of men” (To the Inhabitants of of the Colony of Massachusetts Bay, March 6, 1775). This succinct formulation deftly captures the connection between precedents and the rule of law. By adhering to its settled precedents, the House situates the decision-making of its members within the context of a body of laws. The caprice and captiousness decried by Jefferson is thus replaced by the stability and certainty of impersonal, impartial law.

The House or Representatives has a long tradition of cataloging and publishing its parliamentary precedents. The first comprehensive attempt to compile the precedents of the House occurred in 1907, with the publication of the Hinds’ Precedents series. This five-volume work covered the entire span from the First Congress in which Madison served to the beginning of the 20th century. A subsequent series of three volumes – Cannon’s Precedents – was published in 1936, and catalogued precedents established during the 1907-1936 period. Deschler’s Precedents began in the mid-1970s, with the last of its 18 volumes completed in 2013.

The latest series of precedents, entitled simply “Precedents of the United States House of Representatives,’’ saw its first volume published in 2017. The second volume has just been published, and is now available online. These new volumes continue the venerable tradition of grounding the parliamentary practice of the House in settled law. It is a legacy that would have pleased Madison, Jefferson, and Adams, and it is one of which all Americans should be proud.

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Mo Brooks, the January 6 Riot, and the Federal Tort Claims Act

Today we are discussing a lawsuit filed by Representative Eric Swalwell (D-CA) against Representative Mo Brooks (R-AL), in which Swalwell alleges that Brooks conspired with former President Trump to overturn the results of the 2020 presidential election and to incite a mob to storm the Capitol on January 6, 2021. Brooks has responded by asking the House Administration Committee and House Counsel’s office to submit the complaint, pursuant to 28 CFR § 15.2, to the Department of Justice for purposes of the Attorney General’s certification that Brooks was acting within the scope of his employment when he committed the acts alleged therein. As we have discussed before (see here and here), the effect of such certification under the Federal Tort Claims Act (FTCA), if sustained by the court, is to substitute the United States as the defendant with respect to any tort claims asserted against the federal official. In the case of the tort claims against Brooks, the FTCA would then require dismissal of those claims altogether because they are not ones for which recovery against the United States is authorized.

The allegations against Brooks appear to fall into two primary categories: (1) tweets that he sent prior to January 6 which called into question the election results, claimed that Congress could and should reject those results, and promoted his own participation in the so-called “stop the steal” rally on January 6; and (2) his speech to Trump supporters at the January 6 rally on the Ellipse, during which (as summarized in Swalwell’s complaint) “Brooks told the attendees at the rally that their country was literally being taken from them, that the scale of wrongdoing was of historical proportions, that it was time to start ‘kicking ass,’ and that the individuals who were there that day had to be ready to perhaps sacrifice even their lives for their country.” Complaint ¶ 84 (emphasis in original). After this, of course, some of the rallygoers proceeded to march to the Capitol, illegally enter it, and engage in other unlawful conduct. Continue reading “Mo Brooks, the January 6 Riot, and the Federal Tort Claims Act”

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House Judiciary’s Terrible, Horrible, No Good, Very Bad McGahn Deal

Friday was the day Don McGahn finally spoke to the House Judiciary Committee, though he did so behind closed doors pursuant to an agreement reached between the committee and the Biden Justice Department. What McGahn has to say may or may not be of some public interest, but it is unlikely to be as important as the agreement itself.

Background  

McGahn, you may recall, was White House counsel in the early part of the Trump administration. In the spring of 2019, well after McGahn had left his position and returned to private life, the committee subpoenaed him to give testimony in its investigation into matters related to the Mueller report. The attachment to the subpoena, which instructed McGahn to bring documents still in his possession regarding certain specified matters, gives some indication of the broad spectrum of topics upon which the committee was seeking to question him. Most of these were subjects covered to some extent by the Mueller report, but Mueller did not necessarily report on McGahn’s involvement in all of them. For example, the subpoena sought documents on potential presidential pardons for various individuals, including Paul Manafort, Michael Flynn and Roger Stone (all of whom later received pardons), but the Mueller report does not reveal what, if any, role McGahn may have had in pardon discussions.

McGahn refused to appear for his deposition based on instructions from President Trump, who invoked the longstanding but highly controversial executive doctrine that senior presidential aides enjoy absolute immunity from compelled congressional testimony regarding their official duties. The committee thereupon commenced a federal lawsuit seeking a court order requiring McGahn to appear. The Trump Justice Department, representing McGahn in the lawsuit, offered three primary arguments for dismissal of the suit: (1) constitutional separation of powers principles establish that a congressional committee lacks standing to sue for enforcement of a subpoena; (2) the committee’s suit lacked statutory authorization; and (3) McGahn was absolutely immune from compelled congressional testimony regarding his service as White House counsel.

These arguments met with what might be charitably described as a mixed reception by the courts. The district judge (Kentaji Brown Jackson, now a nominee to the D.C. Circuit) firmly rejected all three arguments, reaching identical conclusions on these questions as had another district judge (John Bates) in a similar case in 2008. Judge Jackson issued a lengthy opinion excoriating the Justice Department’s legal arguments. She was particularly incredulous of DOJ’s position that the president, as the “owner” of this alleged immunity, could exercise absolute control over the communications of his aides, even after they left the government. This assertion “brings to mind an Executive with the power to oversee and direct certain subordinates’ communications for the remainder of their natural life” and was inconsistent with the proposition that “Presidents are not kings” and “do not have subjects, bound by loyalty or blood, whose destiny they are entitled to control.”

McGahn appealed to the D.C. Circuit, where he initially met with more success. A three judge panel ruled 2-1 that the committee lacked standing to sue, holding in an opinion written by Judge Griffith that the case presented an interbranch dispute that must be resolved through political negotiation and accommodation rather than by the judiciary. Judge Rogers vigorously dissented from the majority’s “extraordinary conclusion” which, she contended, “removes any incentive for the Executive Branch to engage in the negotiation process seeking accommodation, all but assures future Presidential stonewalling of Congress, and further impairs the House’s ability to perform its constitutional duties.”

It should be noted that nothing in the panel’s ruling suggests any inclination to support the Justice Department’s position on absolute immunity. To the contrary, Judge Griffith, while noting there was no need to reach the merits, obliquely referenced the president’s “blatant refusal to cooperate with the Committee’s investigation into his alleged wrongdoing” and warned that while the political branches may “disagree in good faith about their obligations to one another . . . the legitimate scope of that disagreement is not boundless.” Judge Henderson, concurring, went further, criticizing McGahn’s “absolutist stance” which “rests on somewhat shaky legal ground.” Judge Rogers agreed with Judge Henderson that if the court were to reach the merits “McGahn would be unlikely to prevail” and noted that the Supreme Court’s decision in United States v. Nixon “would appear to foreclose McGahn’s argument on the merits.”

In any event, the full D.C. Circuit granted rehearing en banc and concluded in a 7-2 decision (Griffith and Henderson being the only dissenters) that the committee did in fact have standing to seek judicial enforcement of its subpoena. The majority opinion by Judge Rogers, however, did not address the other issues raised by McGahn, instead remanding the case to the original panel to address those issues.

The panel then again split 2-1 on the question whether the committee had a cause of action to enforce its subpoena, with Judge Griffith again writing (on the last day before his retirement) the majority opinion which held that a congressional subpoena enforcement action against the executive branch would require specific statutory authorization, which Congress had failed to enact despite repeated attempts over the years. Judge Rogers again dissented, finding both that the committee had an implied cause of action under the Constitution and a cause of action pursuant to the Declaratory Judgment Act. Judge Rogers also addressed the merits, finding that the absolute immunity theory was based on “a view of Presidential power expressly rejected by the Supreme Court” in Nixon.

The case did not end there, however. The full court agreed again to review the panel’s ruling en banc. By this time, though, it was well into the fall of 2020, and the court set argument for February 2021, when there would be a new congress and (as it turned out) a new administration.  Continue reading “House Judiciary’s Terrible, Horrible, No Good, Very Bad McGahn Deal”

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What Would Xena Do? A Conscientious Senator Navigates the Impeachment Trial.

As you know, on February 9 the Senate voted 56-44 to proceed with the second impeachment trial of Donald Trump, finding that the former president “is subject to the jurisdiction of a court of impeachment for acts committed while President of the United States, notwithstanding the expiration of his term in that office.” This allows the trial to proceed, although some argue that there is no reason to continue since it is clear there cannot be enough votes to convict. After all, if a senator has concluded that there is no jurisdiction over the defendant, she logically cannot convict (or so it is argued).

The same issue arose in the 1876 trial of former secretary of war William Belknap, who resigned from office just hours before the House impeached him for corruption. The Senate then debated whether it had jurisdiction to try the articles of impeachment against “William W. Belknap, late Secretary of War.” By a vote of 37-29, almost exactly the same percentage breakdown as in Tuesday’s vote in the Trump trial (by my calculation the Belknap majority was .00060606 larger), the Senate voted in favor of jurisdiction. See Jonathan Turley, Senate Trials and Factional Disputes: Impeachment as a Madisonian Device, 49 Duke L. J. 1, 55 (1999).

Belknap’s lawyers then argued that the trial should not proceed. They contended the jurisdictional vote showed the respondent had been “substantially acquitted” because more than one-third of the Senate had by their votes “declared and affirmed their opinion to be that said plea of said respondent . . . was sufficient in law to prevent the Senate . . . from taking further cognizance of said articles of impeachment.” 3 Hinds’ Precedents §2461. The Senate, however, rejected this motion to dismiss and proceeded to conduct a lengthy trial (which nonetheless resulted in Belknap’s acquittal almost entirely based on the jurisdictional issue).

There are two reason why the Senate, as Professor Turley put it, “wisely rejected” Belknap’s effort to stop the trial. See Turley, 49 Duke L. J. at 55 n.240. First, even if Belknap’s acquittal were inevitable, there is value in conducting an impeachment trial that the Senate has determined it has the constitutional authority to conduct. As House manager George Hoar (later a prominent senator) argued in the Belknap case, holding a trial has value in itself, allowing for the airing of charges by “any responsible accuser” and the conduct of a “judicial trial” or “inquest” with a “process for the discovery of concealed evidence.” See Thomas Berry, Late Impeachment: An In-Depth Account of the Arguments at the Belknap Trial (Part IV) (Feb. 7, 2021). An impeachment trial can demonstrate the guilt or innocence of the accused, expose official misconduct, and serve as an affirmation of the standards of conduct expected for those entrusted with public office. See Turley, 49 Duke L. J. at 56 (explaining that “a trial of Belknap was needed as a corrective political measure” and “[r]egardless of outcome, the Belknap trial addressed the underlying conduct and affirmed core principles at a time of diminishing faith in government”).

Second, it is not inevitable (at least in theory) that a senator who votes against jurisdiction will also vote for acquittal. To see why, let us look at the matter from the perspective of our hypothetical conscientious senator, Xena. Senator Xena has sworn to do impartial justice in the impeachment trial of former president Trump and that is what she intends to do. Thus, she will approach the question of whether the Senate has jurisdiction to try a former president without fear or favor, uninfluenced by any constitutionally irrelevant considerations.

You may believe that such a senator could reach only one result, but most scholars who have studied the question (particularly those who did so before January 6) would acknowledge that it is, as Professor Kalt observed in his 2001 article, a “close and unsettled question.” I have made clear my view (which even Senator Cruz now shares) that the stronger argument favors late impeachment, but for purposes of this exercise we will assume Xena reaches a different conclusion. Continue reading “What Would Xena Do? A Conscientious Senator Navigates the Impeachment Trial.”

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Late Impeachments, Senate Resolution 16, and Some Relationships

Writing in the Wall Street Journal Sunday, Chuck Cooper argues that the Constitution permits late impeachments, i.e., the impeachment and trial of former officials who are accused of committing high crimes or misdemeanors while in office. Cooper acknowledges that forty-five Republican senators appear to have taken a different view by voting in favor of Senator Rand Paul’s point of order challenging the constitutionality of former President Trump’s impeachment trial, but he explains that “scholarship on this question has matured substantially since that vote.”

This remark occasioned some Twitter snark (o.k., it was from me) seeing as how the vote took place on January 26, which doesn’t leave much time for scholarship to have “matured.” It was pointed out to me that at least one useful piece of scholarship has emerged in that time, namely Thomas Berry’s four-part series on the question of late impeachment in the Belknap case. (Berry does not take a position on the issue, but very helpfully summarizes the relevant arguments on both sides).

For the most part, though, what has happened is that scholars have come forward to take positions for or against (mostly for) late impeachments, without necessarily adding to the actual scholarship on this issue. Having ten law professors or prominent lawyers make the same argument does not really make it any stronger, particularly when made in the context of a heated political dispute. Nonetheless, it can be important for senators who are looking for guidance or cover.

Republican senators (who are the main audience here) are naturally going to gravitate toward experts who are conservative/originalist, prominent constitutional lawyers, and/or well-known to them and their colleagues. Cooper qualifies on all of these counts. He is a highly prominent and successful constitutional litigator, and he has strong ties to Senate Republicans. (For example, Ted Cruz was one of the first associates Cooper hired when he formed his own law firm back in the 1990s.)

Of course, senators like Cruz, Josh Hawley and Mike Lee consider themselves to be fully qualified to make their own constitutional judgments, but it will be hard for them to deny that the issue of late impeachments is, at the very least, a close question when so many prominent conservative/libertarian legal scholars have come down in pro-late impeachment camp. These scholars include former federal judge Michael McConnell, who argues that the Constitution allows former officials to be tried in the Senate so long as they were impeached while in office, as well as many others (Andrew McCarthy, Ramesh Ponnuru, Dan McLaughlin, Keith Whittington, Jonathan Adler, Michael Stokes Paulsen, Ilya Somin and Steven Calabresi, to name a few), who argue for the constitutionality of late impeachments generally.

Of course, there are legal experts who have come out against late impeachments. Perhaps the most prominent is Phillip Bobbitt, a well-known constitutional scholar (and, it should be noted, someone who is not an originalist and is not associated with Trump or conservative politics). Another is J. Michael  Luttig, a well-respected conservative former judge (for whom, incidentally, Cruz clerked). Conservative legal scholars John Yoo and Robert Delahunty have also written a rather overstated originalist argument against the constitutionality of late impeachments. Jonathan Turley, who had written favorably of late impeachments in 1999, has now moved to a position of neutral, leaning against. And two characters from Trump’s last impeachment, Alan Dershowitz and John Bolton, have weighed in against late impeachments. There undoubtedly are other legal experts (however broadly that term is construed) who have expressed similar views, though the ranks are surely much thinner than the pro-late impeachment side.

As noted, numbers alone do not establish who is correct. Moreover, Republican senators who are inclined to oppose impeachment may discount the views of the pro-late impeachment experts on the grounds that they have been influenced by the atrocious nature of Trump’s offense and that (as mentioned in my last post) the facts of the case seem like they were dreamed up by a law professor to support late impeachment. Hard cases make bad law and all that.

Whether this is fair or not, it is worth specifically noting the views of those who have thought and written about this question prior to January 6. Whittington, McCarthy and Turley are in this category, and they all had favored late impeachment. As mentioned in my last post, in fact, while relatively few scholars had addressed themselves to this question even in passing, the ones who did seemed to overwhelmingly support the constitutionality of the practice. One important but partial exception is Justice Story, about whom more later.

To my knowledge, however, the only scholar who has truly looked at this issue in depth and outside the context of a particular controversy is Professor Brian Kalt. (Kalt specializes in odd constitutional issues, including the 25th amendment and late impeachments, and boy did he hit the jackpot with the Trump administration.) If you want an exhaustive and even-handed discussion of the arguments for and against late impeachment, you need to read Kalt’s 2001 article on the subject, in which he concludes that while the “question of late impeachability is close and unsettled,” the better view is that “Congress can pursue late impeachments, based on an analysis of the text, structure, historical underpinnings, and precedent of the Constitution’s impeachment provisions.”

All of which brings me to Senate Resolution 16, which is the brief resolution that the Senate adopted on January 26 in connection with “the article of impeachment against Donald John Trump, President of the United States.” That the resolution refers to Trump in this manner reflects only, I assume, the fact that the article of impeachment is addressed to Trump as president because, of course, Trump was indeed president at the time the House impeached him. Somewhat more interesting, though, is that the resolution states it was adopted “pursuant to rules III and IV fo the Rules and Practice When Sitting on Impeachment Trials,” which are the Senate’s standing rules on impeachment. Rule IV deals exclusively with presidential impeachments and provides that the chief justice shall preside. Unless the reference to Rule IV was a mistake or oversight, it seems that the Senate is still leaving open the possibility that this will be conducted as a presidential impeachment trial. Continue reading “Late Impeachments, Senate Resolution 16, and Some Relationships”