[EL] (no subject)

Thu Jan 7 12:55:56 PST 2021

Yes, always good to keep Machiavelli in mind.

The DOJ’s consistent position has been that Senate acquittal does not bar criminal prosecution, as that memo confirms.  But whether there would be a legal bar or not, there is certainly a political judgment to be made about whether it would be smart to go forward unless it’s known in advance that the Senate would convict.  I’m just raising the issue because many less-informed people just assume you can’t impeach someone after they have left office.

Best,
Rick

Richard H. Pildes
Sudler Family Professor of Constitutional Law
NYU School of Law
40 Washington Square So.
NYC, NY 10014
347-886-6789

From: Paul Lehto [mailto:lehto.paul at gmail.com]
Sent: Thursday, January 7, 2021 3:47 PM
To: Kenneth Mayer <krmayer at wisc.edu>
Cc: Pildes, Rick <rick.pildes at nyu.edu>; Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] (no subject)

It would be quite ironic if a list of impeachment charges followed by acquittal on any count(s) in the Senate ultimately were found to operate as a de facto pardon of sorts as to the matters in the acquittals. By Congress, no less.

The conclusion of an Office of Legal Counsel analysis of the effect of possible Senate acquittal states as follows:

"We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office. As the length of this memorandum indicates, we think the question is more complicated than it might first appear. In particular, we think that there is a reasonable argument that the Impeachment Judgment Clause should be read to bar prosecutions following acquittal by the Senate and that disqualification from federal office upon conviction by the Senate bears some of the markers of criminal punishment. Nonetheless, we think our conclusion accords with the text of the Constitution, reflects the founders’ understanding of the new process of impeachment they were creating, fits the Senate’s understanding of its role as the impeachment tribunal, and makes for a sensible and fair system of responding to the misdeeds of federal officials."
https://www.justice.gov/file/19386/download<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.justice.gov_file_19386_download&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=itzXoMm_RoGtB7pzOGmOEYDOru9rELoXAP1qt_Fu1t0&s=FcDyNXyCBrnMV3byLl6Oti2PxGUuez6Iol9iMLq6ZpA&e=>

If you're going to shoot the king, don't miss. -- Nicolo Machiavelli

Paul Lehto, J.D.

On Thu, Jan 7, 2021, 12:16 PM Kenneth Mayer <krmayer at wisc.edu<mailto:krmayer at wisc.edu>> wrote:
William Blount.

https://www.senate.gov/artandhistory/history/minute/The-First-Impeachment.htm<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.senate.gov_artandhistory_history_minute_The-2DFirst-2DImpeachment.htm&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=itzXoMm_RoGtB7pzOGmOEYDOru9rELoXAP1qt_Fu1t0&s=J7RmgiQBL2QcmlFTjg3crTe0sAV1jtk85RRRmZvGOV4&e=>
U.S. Senate: The First Impeachment<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.senate.gov_artandhistory_history_minute_The-2DFirst-2DImpeachment.htm&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=itzXoMm_RoGtB7pzOGmOEYDOru9rELoXAP1qt_Fu1t0&s=J7RmgiQBL2QcmlFTjg3crTe0sAV1jtk85RRRmZvGOV4&e=>
A signer of the U.S. Constitution, William Blount became one of Tennessee's first two senators in 1796. A year later, on July 3, 1797, President John Adams notified Congress that his administration had uncovered a conspiracy, spelled out in an incriminating letter, involving several American citizens who had offered to assist Great Britain in an improbable scheme to take possession of the ...
www.senate.gov<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.senate.gov&d=DwMFaQ&c=slrrB7dE8n7gBJbeO0g-IQ&r=v3oz9bpMizgP1T8KwLv3YT-_iypxaOkdtbkRAclgHRk&m=itzXoMm_RoGtB7pzOGmOEYDOru9rELoXAP1qt_Fu1t0&s=bLMNxdafwoiebqbEwm3j_LuAEtEiIM7A1jrGWMAqRBE&e=>

Kenneth R. Mayer
Professor of Political Science
Affiliate Faculty, La Follette School of Public Affairs
110 North Hall/1050 Bascom Mall
University of Wisconsin-Madison
Madison, WI  53706

צדק, צדק תרדוף

________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>> on behalf of Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>>
Sent: Thursday, January 7, 2021 1:51 PM
To: Election Law Listserv <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] (no subject)

Has Congress ever impeached/convicted a federal official after they have left office?  They have the power to do so, in order then to disqualify them from holding future office.  But does anyone know if that has been done ever?

Best,

Rick

Richard H. Pildes

Sudler Family Professor of Constitutional Law

NYU School of Law

347-886-6789

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