[EL] ELB News and Commentary 1/8/21

[Rick Hasen]

“Capitol Attack Leads Democrats to Demand That Trump Leave Office”<https://electionlawblog.org/?p=118680>
Posted on January 7, 2021 8:44 pm<https://electionlawblog.org/?p=118680> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2021/01/07/us/politics/trump-leave-office-resignation.html>:

President Trump’s administration plunged deeper into crisis on Thursday as more officials resigned in protest, prominent Republicans broke with him and Democratic congressional leaders threatened to impeach him for encouraging a mob that stormed the Capitol<https://www.nytimes.com/interactive/2021/01/06/us/trump-mob-capitol-building.html> a day earlier.

What was already shaping up as a volatile final stretch to the Trump presidency took on an air of national emergency as the White House emptied out and some Republicans joined Speaker Nancy Pelosi and a cascade of Democrats calling for Mr. Trump to be removed from office without waiting the 13 days until the inauguration of President-elect Joseph R. Biden Jr.

The prospect of actually short-circuiting Mr. Trump’s tenure in its last days appeared remote. Despite a rupture with Mr. Trump, Vice President Mike Pence privately ruled out invoking the disability clause of the 25th Amendment to sideline the president, as many had urged that he and the cabinet do, according to officials. Democrats suggested they could move quickly to impeachment, a step that would have its own logistical and political challenges.

But the highly charged debate about Mr. Trump’s capacity to govern even for less than two weeks underscored the depth of anger and anxiety after the invasion of the Capitol that forced lawmakers to evacuate, halted the counting of the Electoral College votes for several hours and left four people dead.

Ending a day of public silence, Mr. Trump posted a 2½-minute video on Twitter<https://twitter.com/realDonaldTrump/status/1347334804052844550> on Thursday evening denouncing the mob attack in a way that he had refused to do a day earlier. Reading dutifully from a script prepared by his staff, he declared himself “outraged by the violence, lawlessness and mayhem” and told those who broke the law that “you will pay.”

While he did not give up his false claims of election fraud, he finally conceded defeat. “A new administration will be inaugurated on Jan. 20,” Mr. Trump acknowledged. “My focus now turns to ensuring a smooth, orderly and seamless transition of power. This moment calls for healing and reconciliation.”

Mr. Trump initially resisted taping the video, agreeing to do it only after aides pressed him and he appeared to suddenly realize he could face legal risk for prodding the mob, coming shortly after the chief federal prosecutor for Washington left open the possibility of investigating the president for illegally inciting the attack by telling supporters to march on the Capitol and show strength.

Pat A. Cipollone, the White House counsel, had warned Mr. Trump of just that danger on Wednesday as aides frantically tried to get the president to intervene and publicly call off rioters, which he did only belatedly, reluctantly and halfheartedly.

“We are looking at all actors, not only the people who went into the building,” Michael R. Sherwin, the U.S. attorney in Washington, told reporters. Asked if that included Mr. Trump, he did not rule it out. “We’re looking at all actors,” he repeated. “If the evidence fits the elements of a crime, they’re going to be charged.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Trump Nearly Concedes<https://electionlawblog.org/?p=120313>
Posted on January 7, 2021 4:33 pm<https://electionlawblog.org/?p=120313> by Rick Hasen<https://electionlawblog.org/?author=3>

On Twitter, of course:<https://twitter.com/rickhasen/status/1347338579366735873?s=20>

So why the tone of conciliation from Trump suddenly now? Three possibilities:

1. worried about 25th amendment or record second impeachment

2. to seek to rehabilitate his reputation post-presidency/preserve social media access

3. true remorse.

Strike #3. It’s 1 or 2.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump Campaign Drops All Georgia Election Challenges”<https://electionlawblog.org/?p=120311>
Posted on January 7, 2021 3:33 pm<https://electionlawblog.org/?p=120311> by Rick Hasen<https://electionlawblog.org/?author=3>

GPB<https://www.gpb.org/news/2021/01/07/trump-campaign-drops-all-georgia-election-challenges>:

The Trump campaign has voluntarily dismissed four lawsuits challenging November’s elections in Georgia after falsely claiming it reached a settlement with the state to review election data.

“We are promptly voluntarily dismissing the following legal actions as per your request and consideration of the settlement,” the letter from Roswell attorney Kurt Hilbert reads<https://www.courtlistener.com/recap/gov.uscourts.gand.285271/gov.uscourts.gand.285271.22.0_1.pdf>. Hilbert is the attorney for a federal court case that was denied Tuesday, a pending Superior Court of Fulton County suit, a case on appeal to the Georgia Supreme Court and a long-delayed case filed by the Trump campaign in December.

Hilbert wrote that the campaign’s attorneys were looking forward to receiving “heretofore withheld Nov. 3, 2020 election data.”

But in a filing by the state<https://www.courtlistener.com/recap/gov.uscourts.gand.285271/gov.uscourts.gand.285271.23.0.pdf>, special assistant attorney general Chris Anulewicz told the court any claims of a settlement agreement were false and Hilbert appeared to violate Georgia Rules of Professional Conduct.

“Without notifying Defendants’ counsel, Plaintiff and his litigation counsel participated in a phone conference with Defendant Raffensperger on Saturday, January 2, 2020,” he wrote. “The participation of counsel for Plaintiff in that call appears to be in violation of the Georgia Rules of Professional Conduct Rule 4.2, as Plaintiff’s counsel neither notified litigation counsel for Defendant Raffensperger nor sought nor obtained consent to conduct or participate in a conversation with Defendant Raffensperger.”
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“Legal Scholars Call for President Trump’s Immediate Removal”<https://electionlawblog.org/?p=120309>
Posted on January 7, 2021 3:30 pm<https://electionlawblog.org/?p=120309> by Rick Hasen<https://electionlawblog.org/?author=3>

Release<https://www.acslaw.org/press_release/legal-scholars-call-for-president-trumps-immediate-removal/>:

Calling the continued presidency of Donald Trump “a grave risk to our democracy” more than 500 legal and constitutional scholars from around the country have signed on to a letter<https://www.acslaw.org/inbrief/statement-of-law-professors-calling-on-the-immediate-removal-of-trump-from-office/> calling for his immediate removal from office.

The letter was coordinated by Kent Greenfield, Professor and Dean’s Distinguished Scholar at Boston College Law School, and the American Constitution Society. Greenfield is also the faculty advisor of Boston College Law School’s ACS Chapter.

The letter states that the president’s refusal to abide by the judgment of the American people has sabotaged a peaceful transfer of power from his Administration to that of President-Elect Biden.

“He has continued to lie about the trustworthiness of the national election, sought to enlist state officials in illegal manipulation of election results, and has undermined the constitutional process of the electoral college,” the letter states. “And while the nation watched, a lawless, insurrectionist mob stormed and defiled the United States Capitol pursuant to his incitement and support.”

It goes on to say: “Donald Trump has violated his Oath ‘to faithfully execute the Office of President of the United States’ and to ‘preserve, protect, and defend the Constitution.’”

The letter concludes with a call to the United States Congress, Vice President Mike Pence, and the Cabinet to remove President Trump from office immediately, through the impeachment process or by invoking the 25th Amendment.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Can Congress Impeach and Convict a Former Federal Official After They Leave Office?<https://electionlawblog.org/?p=120307>
Posted on January 7, 2021 12:27 pm<https://electionlawblog.org/?p=120307> by Richard Pildes<https://electionlawblog.org/?author=7>

The reason for such an impeachment would be then, after conviction, to disqualify that person from holding future office. Disqualification is a sanction that can be attached following impeachment and conviction.

The most prominent example of Congress having asserted such a power occurred during Reconstruction, when Secretary of War William Belknap resigned just before the House voted on the Articles of Impeachment. The House went ahead and approved the articles, and Belknap was then tried in the Senate a month later, which failed to convict him. Belknap attended his trial in the Senate. For the Senate’s history of this event, see here<https://www.senate.gov/artandhistory/history/minute/War_Secretarys_Impeachment_Trial.htm>.

The leading academic article on the general issue, as far as I know, is Brian Kalt’s article, The Constitutional Case for the Impeachability of Former Federal Officials: An Analysis of the Law, History, and Practice of Late Impeachment<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=286277>. Here is his abstract, which summarizes the general history and arguments:

This article considers the constitutional case for the impeachability of federal officers after they have left office. As a practical matter, while it may rarely be worthwhile to pursue a late impeachment (as with regular impeachment), this does not change the fact that it can be done, or that certain facts may make it desirable. The article principally argues that: (1) Late impeachment was practiced in England and, unlike other aspects of English impeachment, was never explicitly ruled out in America. Indeed, some state constitutions made late impeachability explicit, or even required. (2) Structurally, impeachment is designed not just to remove but to deter, and this effect would be severely undermined if it faded away near the end of a term. Convicted impeachees can be disqualified from future federal office, an important punishment that should not be automatically mooted if the officer resigns or the president removes him. (3) The precedents are mixed, but the Senate has approved late impeachment. Senate opponents of late impeachment have not prevented late trials, and they cannot alter the formal declaration of a majority of the Senate in one case that officers can indeed be impeached after they have left office
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Supreme Court Unsurprisingly Rejects Gohmert’s Attempt to Steal The Election for Trump<https://electionlawblog.org/?p=120305>
Posted on January 7, 2021 10:19 am<https://electionlawblog.org/?p=120305> by Rick Hasen<https://electionlawblog.org/?author=3>

No surprise.<https://twitter.com/MikeScarcella/status/1347244490868846598?s=20>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>

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